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Ockenden Report: another damning indictment of maternity services but will we see change?

Clinical negligence solicitors, Suzanne White and Ceilidh Robertson of Leigh Day, discuss the final Ockenden Report into maternity services at Shrewsbury and Telford Hospital NHS Trust and the issues that it raises.

Posted on 12 July 2022

The final Ockenden report was published on 30 March 2022. Although it is the largest inquiry into maternity services in the history of the NHS, (some 1,468 families were involved), the issues it raises are by no means unfamiliar given the number of reported maternity scandals in the UK.

The report describes all too common themes: failure to follow clinical guidelines, failure to learn and improve and listen to patients, caesarean quotas, and pressure for “normal births”, but what really stands out from the report is the continued inadequacy of the current methods of investigation available and an unflinching culture of defensiveness within the trust. 
The report describes failures to investigate at all when serious incidents occurred or, when investigations were carried out, they were limited in scope, defensive or lacked the involvement of the families concerned. 
Key findings of the Okenden inquiry:
  • a culture where mistakes were not investigated
  • a lack of external scrutiny
  • a failure to listen to parents when concerns were raised
  • investigations lacking transparency and honesty
  • a failure to learn from mistakes, leading to repeated and almost identical failures
  • a culture of bullying, anxiety and fear of speaking out among staff at the trust
The inquiry reviewed 498 stillbirths and in 25% of those, significant concerns with the treatment provided were identified. In the twelve maternal deaths that were considered, it was found that internal investigations identified systems-wide service failings. In two-thirds (65.9%) of investigations into babies that had suffered hypoxic ischemic encephalopathy (HIE), significant concerns about the maternity care were identified. In relation to neonatal deaths, nearly a third of all cases showed significant or major concerns in the maternity care provided. The inquiry also concluded that there was a failure in clinical governance and leadership. 
The findings of the inquiry necessitate a review of the processes available to trusts and families to investigate incidences of poor care in maternity services and forces us to question whether the current system is fit for purpose.
The inquiry was a long process and the result of tireless work by the families involved. Donna Ockenden built up a relationship of trust with those families and listened to their stories. However, it appears that the good practice implemented in the Ockenden inquiry is not being adopted elsewhere. A thematic review of maternity services, commissioned by the local clinical commissioning group, NHS England and NHS Improvement, at Nottingham University Hospitals NHS Trust is underway. However, the families involved have already questioned the independence of the review and the experience of the team tasked with undertaking it and called for Ms Ockenden to lead the review. The current chair has stood down but there is no indication at present that Ms Ockenden will be appointed to head the review despite her confirming that she would be willing to do so in principle.  
In the Mid Staffordshire inquiry report, Sir Robert Francis stated that “for all the fine words printed and spoken about candour, and willingness to remedy wrongs, there lurks within the system an institutional instinct which, under pressure, will prefer concealment, formulaic responses, and avoidance of public criticism”. Since the Mid Staffordshire inquiry a number of schemes have been set up to improve the investigative process into poor maternity outcomes. In 2017 the NHSR Early Notification Scheme (ENS) was introduced. 
The ENS requires trusts to notify NHS Resolution (NHSR) of maternity incidents which meet a certain clinical definition. The NHSR states that the scheme is intended, amongst other things, to improve the experience for the family and affected staff, share learning rapidly with the individual trust and the wider system in order to support safety improvement and prevent the same things happening again. However, in our experience, all too often families are not aware that their case has been reported to the ENS or that it is being investigated. In some cases there remains a culture of secrecy and a failure to comply with the duty of candour. Families’ involvement in the process is limited and they have little opportunity to challenge findings or influence the outcome. Information gathered by any investigation carried out the under the ENS is covered by legal privilege and is not made available to the families concerned.   
Whilst the ENS process has resulted in some early admissions of liability it is operated by NHS Resolution which can be seen as a conflict. Any scheme that genuinely aims to learn lessons and improve outcomes must be independent. There must be transparency. Families must be involved in the investigation process and their voices listened to. Adequate funding needs to be provided to ensure that cases are considered and investigated promptly and that families are not subjected to a protracted process.
In addition to the ENS, the Healthcare Safety Investigation Branch (HSIB) was, until recently, responsible for investigating incidences of stillbirth, neonatal and maternal death and brain damage. The shared aims of the HSIB included a focus on learning not blame, reducing the risk of further harm and looking at the clinical and medical aspects of care, including the working environment and culture in hospitals. Their shared goals included ensuring that patients, families and staff were central to investigations and that objective, independent investigations were carried out competently with credibility and integrity. 
Unfortunately, the HSIB has been disbanded. In a statement on 26 January 2022, the Secretary of State for Health and Social Care, Sajid Javid, confirmed plans to establish a Special Health Authority (SHA) to continue the Maternity Investigation Programme of the HSIB. It is stated that the SHA will “provide independent, standardised, and family-focused investigations to provide answers and provide learning to the health systems at reports to improve clinical and safety practices in Trusts, analyse data from investigations to identify trends and monitor improvements, or lack of improvements”.
It remains to be seen how the new system will fit with the existing Serious Incident Reporting system. The majority of cases of poor outcome are still investigated locally through this system and the same issues crop up here. Our clients frequently report that the process has failed to involve them, address key issues, or allowed them to be involved in identifying the terms of reference. Families report a lack of impartiality and investigations that lack robustness. From our own experience as specialists in this field we see failures to undertake investigations when it is clear one ought to be undertaken, investigations that are limited in scope, families not being made aware that an investigation is taking place or not being provided with a copy of the final report. Here too there is a lack of objectivity and an attitude of defensiveness. 
One of the other issues that stands out from the findings of the Ockenden Report is the culture of paternalism around maternal choice for caesarean section. It is now seven years since the Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11 and progress has been made with regards to informed consent but the Ockenden report reveals that there is still work to be done, especially in the maternity setting. The dogged promotion of ‘natural birth’ without proper consideration of risk continues. In some of the cases that we bring for children who have suffered serious brain injury at birth, the negligent act was a failure or delay in carrying out a caesarean section.
Of course, government continues to malign clinical negligence litigation and the focus once again returns to the costs of litigation, but litigation is the symptom not the cause of problems in maternity safety. High quality, comprehensive, impartial investigations into adverse maternity outcomes is fundamental to improving safety which will, in turn, reduce the costs of litigation. Our clients frequently report their motivating factors for taking legal action to be a lack of openness and honesty by the trust concerned and a desire not to see other families go through what they did.
Rather than a focus on individual trusts we would like to see all evidence from the different maternity enquiry processes collated so that there can be shared learning and nationwide implementation of recommendations. 
Of course, it is not only the investigative bodies that need to be properly staffed and funded – it is reported that there is shortage of around 2,000 midwives in the NHS. Chronic underfunding of the NHS means that staff across the board are being dangerously stretched to their limits.  
Sadly, without radical and systemic changes, it is likely that we will see the same issues repeating with the same catastrophic consequences for families. 
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