Maternity-related deaths and brain injuries; new investigations by the Healthcare Safety Investigations Branch
On 1 April 2017 the Healthcare Safety Investigations Branch (HSIB) began operating, funded by the Department of Health. It was initially envisaged that the HSIB would conduct around 30 investigations each year. Nine of those general safety incident investigations have been announced (see here). So far, they include incidents which many people will recognise as having a wider significance across the NHS eg. the provision of mental health care in A&E departments, and identifying deteriorating patients.
The HSIB Directions published in 2016 introduced the new concept of the 'safe space'. The Directions included that 'contributions that are … candid are more likely … where they may be made in the confidence that it will not be disclosed for the purposes of apportioning blame or establishing liability'. Although the HSIB is expected to make submissions to try to avoid disclosure, this can still be ordered by a court. As a result, the level of disclosure of the investigation documents is likely to develop on a case by case basis.
In November 2017, the government announced that the HSIB would also undertake investigations into each incident of maternity-related deaths and brain injuries. This is expected to include about 1000 or so incidents of intrapartum stillbirth, neonatal deaths, severe brain injuries from 37 weeks gestation, and maternal deaths. Given the number of investigations required, the HSIB is currently recruiting, with the full national team expected to be in place by April 2019. Once up and running, the HSIB will undertake the investigation into the incident, rather than the NHS Trust. The expectation is that there will be more involvement by parents and families as the HSIB is independent of the NHS Trust, and greater support for the clinicians involved. The HSIB's investigation report must set out the sequence of events, consider any specific concerns raised and 'identify all contributory factors that led to that outcome'. The draft report should be provided within 6 months, with all those affected entitled to comment on the accuracy.
It is not yet known how the HSIB investigations will correlate with the litigation and coroner's inquests which arise from these incidents. We note that the 'safe space' principle does not apply to these HSIB investigations1 . The HSIB website suggests that "reports concerning individual cases will only be shared with the family and the organisation where the incident took place". However, the organisation will have a duty to disclose more widely, and the family may wish to do so. If the HSIB investigation concludes that the outcome was due to poor care, this is very likely to expedite the resolution of a claim. It is therefore essential that the investigation report is accurate and fair to all of those involved.
At present multiple reports about the same incident are required. When an eligible incident occurs:
- Data is submitted to the Each Baby Counts2 programme and MBRRACE3
- Within 14 days of the incident, the NHS Trust legal team is informed that a maternity incident leading to severe brain injury has occurred (using the Early Notification report form)
- Within 30 days of the incident, the Trust legal team report the incident to NHS Resolution
- It is expected that referrals will eventually be made directly to HSIB, once a method of reporting has been agreed (see here for more information)
- The NHS Trust should continue to investigate Serious Incidents in maternity care as normal, until the HSIB provides formal notification of the start their investigation
- The NHS Trust is still expected to complete the Perinatal Mortality Review Tool
Please get in touch if you have any questions or comments about this article.
1 Direction 2(4). New directions have been published this week (see here) to enable the HSIB to carry out these 'additional investigatory functions'
2 Run by the Royal College of Obstetrics and Gynaecology
3 Mothers and Babies reducing risk through audits and confidential enquiries https://www.npeu.ox.ac.uk/mbrrace-uk/faqs