Relieving the burden of guilt on parents in medical negligence cases | Medical Negligence and Personal Injury Blog | Kingsley Napley

I have long campaigned for the duty of candour, believing it is the only way to truly have an open dialogue that allows everyone to understand where something has gone wrong, and for systems to be put in place to prevent the same thing happening again.

As someone who has been on the receiving end of a healthcare professional exercising the duty of candour, I was alarmed by a story published in the Guardian about parents left believing they were at fault for the death of their baby following an investigation by HSIB (the Healthcare Safety Investigation Branch).

The article focussed on baby Norah, born in 2019, who died just hours after her birth at the Royal Hampshire County Hospital, and the subsequent investigation. According to the article, the HSIB report highlighted various issues during the hours before Norah died, including that her doctors had not understood the significance of her having different oxygen saturation levels in her hand and foot (which can be an indicator of a heart condition) and also that Norah should have been referred to a more senior doctor for review. Had this happened, she might have survived.

The report also included the following sentence ‘an upper airway event (such as occlusion of the baby’s airway during skin to skin) may have contributed to the baby’s collapse’. This left Norah’s mother believing for years that she may have accidentally smothered her daughter. However, according to the Guardian article, a paediatric cardiologist has reviewed the medical notes and considers that Norah was definitely not smothered.

Donna Ockenden, who has authored a report into the problems with maternity services in Shrewsbury (the Ockenden Report), is reported as stating that she has spoken to many families who have been blamed for the poor outcomes in their cases, including being blamed for their babies’ death.

The impact of the death of a baby, or of their having suffered severe injury at birth, is utterly harrowing. For parents to be left believing that they have in some way been at fault is unimaginable. Norah’s mother told the Guardian that she felt she could not sue the hospital since HSIB had suggested the death may have been her fault. It is noteworthy that the hospital Trust’s own internal report apparently identified no serious errors in Norah’s care.

I am left wondering how many other parents have not investigated legal options when their baby has been harmed, because they believe themselves to be in some way to blame, or because they are frightened that an investigation might uncover that they were in some way responsible.

Part of the process of investigating a medical negligence claim is to obtain independent expert reports about what went wrong and why. In my experience, such reports often give patients a clear narrative of what happened for the first time, perhaps in itself a reflection that the duty of candour is not working as intended. Ultimately, it is extremely important that anyone affected by potential medical negligence feels able to seek legal advice, unhampered by feelings of guilt. When discussing reports with clients I am very conscious of the many emotions that might be provoked, from relief at understanding what happened, to anger that harm could have been avoided.   

The importance of honest communications between doctors and patients and accurate, careful investigations where things have gone wrong with medical treatment cannot be overstated. The damage that can be caused by poor or thoughtless communication is enormous. It is also vital that lessons are learned when there have been mistakes. This is something that in my experience clients often feel very strongly about. They want acknowledgement about what went wrong and evidence that changes will be made. They need to have hope that what has happened to them will not happen to anyone else.

Changes to NHS internal investigation reports

In it noteworthy in this context that the rules surrounding internal NHS investigations are changing. Formerly, hospital Trusts had to undertake their own investigation and produce a Serious Incident Report in a number of circumstances, including where there had been an unexpected or avoidable death or injury resulting in serious harm.

The landscape has now changed. NHS England is introducing a new framework for the response to patient safety incidents. There is now no specified list of incidents that must be investigated. Instead organisations must decide for themselves what to investigate on the basis of local and national priorities.

Aidan Fowler, National Director of Patient Safety at NHS England states that ‘the introduction of this framework represents a significant shift in the way the NHS responds to patient safety incidents, increasing focus on understanding how incidents happen – including the factors which contribute to them’. I do hope that this is in fact the case, but I have concerns that the new framework will result in fewer investigations being conducted. This in turn may be harmful to openness and limit the information received by patients whose cases would not now qualify for investigation, leaving those families without the opportunity of understanding what happened.

Parents must be supported through investigations, free of the anxiety that they are somehow going to blamed. The duty of candour, and investigation process must hold these parents, and their experiences in mind in order to avoid further trauma.