Five Years of Cerebral Palsy Claims: A thematic review of NHS Resolution Data

NHS Resolution has published the findings of a five-year review of cerebral palsy claims, Five Years of Cerebral Palsy Claims: A thematic review of NHS Resolution Data.

The review looked at 50 maternity incidents which took place between 2012 and 2016 and led to successful claims. It was restricted to cases in which legal liability had been admitted. By definition, these involved errors which should have been prevented and, if properly analysed, would reveal lessons to be learned.

Sadly, the lessons it revealed reflected recurrent themes within maternity care, echoing the findings of many previous reports. The key lesson from the review seems to be that if the NHS wants to see improvements in maternity and neonatal patient safety and a reduction of avoidable harm, with a consequent reduction in these high value claims, it must be willing to face up to why these events are still being allowed to occur and take responsibility for bringing about change. The lessons are readily available but does the NHS really want to learn?

The Department of Health has set out its intention to halve the rate of stillbirths, neonatal and maternal deaths and brain injuries that occur around the time of birth by 2030. To do so, it has mandated a change of culture that will transform the NHS from a blaming to a learning organisation. However, despite the many opportunities it has had to learn from the critical findings of several previous initiatives and reports, including Each Baby Counts and the Morecambe Bay Investigation, the recent thematic review found that,  “unfortunately, the evidence suggests there has been little improvement in these areas in recent years….This review adds further weight to these significant findings and makes recommendations which should be acted upon urgently so that further reports do not find similar conclusions.”

The review identified recurring themes in the clinical care and the serious incident (SI) investigation which followed it in each of the 50 cases. It found that contrary to recommendations by the Serious Incident Framework and the Care Quality Commission, many families were not fully involved or invited to contribute to the investigation process or to meet with staff before the report was finalised. Some were not even informed that an investigation was being carried out. Good practice requires parents to be given an apology, an offer of support, an explanation of the facts as they are known at the time and to be kept updated and involved in the investigation as it progresses. The theme of communication with patients carried through to clinical care, where the quality of information provided to enable the patients to give informed consent was routinely found to be lacking.

SI investigation reports were often limited to a timeline of events and a description of what happened. They failed to examine the deeper or system-wide causes of the incident. Very few involved  independent external investigators.

Whilst many of the trusts used root cause analysis (RCA), a recognised methodology for investigating the causes of an incident, they tended to focus too much on the actions or omissions of one individual, without questioning why the incident happened or was allowed to happen. Where errors are treated as isolated mistakes on the part of individuals, the system failures which allow them to happen remain in place. Opportunities for learning are missed and similar incidents can happen again. Claimants are left feeling dissatisfied by the investigation which fails to provide answers to their questions. The investigations under review fell far short of providing the “logical, fair, open” approach and “just or fair blame, culture” that RCA methodology was designed to encourage.

The SI investigation action plans and recommendations were also criticised for their focus on maintaining the current situation, for example by reminding staff members to comply with current policy or guidelines. If nothing changed as a result of the SI investigation, staff who had failed to follow guidance on the occasion that gave rise to the injury would probably do the same again when presented with similar circumstances.

The thematic review recommended:

• That SI investigations should not be closed unless the woman and her family have been actively involved throughout the investigation process. “Women and their families offer invaluable insight into the care they received.”
• The development of a national, standardised and accredited training programme for all staff conducting SI investigations. Competency of investigators should be improved and variation reduced. This recommendation acknowledged that several bodies are already working on improving the quality of SI investigations, including HSIB, NHS Improvement and NHS Resolution. Guidelines are already in place from the Serious Incident Framework and ‘Being Open’, a best practice communication guideline for patient safety.
• All cases of potential severe brain injury, intrapartum stillbirth and early neonatal death should be subject to external or independent peer review. Again, this recommendation echoed recommendations from Each Baby Counts and the Morecambe Bay Investigation.
• Emotional support for staff after an adverse event must be improved as a priority.

In relation to clinical care, fetal heart rate monitoring was an area of concern. The review recognised that whilst an individual’s misinterpretation and other errors relating to CTG use were commonly described as the root cause of the incident, there were often other organisational, systemic and cultural factors which should have been considered as additional root causes. Individuals were blamed for the entirety of the incident when multiple missed opportunities often contributed to the injury.

Women at high risk or who became high risk during labour were not monitored by CTG. Uninterpretable traces were explained away by false reassurance and a wait-and-see approach which wasted valuable time before irreversible hypoxia ensued. Failings in the multidisciplinary teamwork necessary to ensure prompt escalation and quick action were not identified as root causes in the SI reports which focussed solely on the failure of the midwives.

Other areas of concern in clinical care related to breech births, where lack of experience in handling unplanned, vaginal breech births (which are usually delivered by elective caesarean) has left junior obstetricians lacking the necessary skills to deliver an unexpected breech baby safely. Unplanned breech deliveries are often handled by registrars, out of hours, without a consultant present and formed a disproportionate number of the cases under review. Obstetric staff were found to be working independently before having completed sufficient training. Trusts were recommended to review the training they provide, particularly as 29 out of 50 of the SI Investigation reports included recommendations that the staff involved in an incident should undergo training. The review recommended that multi-professional learning should take place, enabling teams that must work together in an emergency to do so in practice.