Maternity safety: child support

Having a child is a joyous time for most families, but there are risks in childbirth and sometimes – though fortunately rarely – things can go seriously wrong. When they do, cases can be complex, and it can take up to two years for the full effects of the incident to become clear. Financial settlements, particularly if the courts are involved, can take years.

NHS Resolution, which runs indemnity schemes for the health services in England, believes a system based on litigation does not work well for families or trusts and has been moving towards a more collaborative and preventative model to help families sooner.

As well as the moral argument for helping patients and their families, there is also a financial need to fix the system. Settlements to patients and their families for all clinical negligence claims through the Clinical Negligence Scheme for Trusts (CNST) continue to rise. Provisions for potential future liabilities are also rising year-to-year. But maternity negligence claims are a major component of these liabilities and NHS Resolution is keen to reduce the costs.

Claims record

In 2018/19, CNST provisions stood at £78bn – and 70% of that related to potential maternity claims (circa £55bn). As CNST members, trusts pay a general premium covering non-maternity clinical services, plus a maternity premium. The latter is based on the number of births at the trust and in 2018/19, maternity contributions totalled more than £735m. Individual trust contributions ranged from £121,000 up to £19m.

Samantha Steele, NHS Resolution national obstetrics clinical fellow, says that the number of maternity claims is relatively small. There are fewer maternity claims than there are for A&E or orthopaedics, for example, she says. Maternity claims accounted for 10% of all claims by volume in 2018/19 – claims relating to A&E accounted for 13%.

However, the value of maternity claims is much higher than any others, due largely to the long-term need for care. Overall, in 2018/19 there were 10,678 clinical negligence claims, including 1,068 obstetrics claims. The value of all claims received in 2018/19 was just over £4.9bn, although 50% of this relates to obstetrics claims, which totalled almost £2.47bn.

Primarily to reduce the risk of harm to babies – and, as a consequence, avoid spending on CNST maternity contributions, settlements and litigation costs – NHS Resolution has launched two programmes over the last two years.

The maternity incentive scheme offers trusts a 10% rebate on their maternity premium if they achieve 10 safety actions (see box overleaf). NHS Resolution says trust maternity contributions ranged from £120,000 to £19m in 2018/19, so the 10% rebate was worth £12,000 to £1.9m for trusts.

Trusts that do not achieve all 10 actions can still receive a partial rebate. This is calculated on a trust-by-trust basis, based on the steps needed to achieve the incomplete actions. They must draw up an action plan and use the funds to achieve the remaining actions.

The scheme is currently in its second year. Dr Steele says that while the safety actions are the same in outline as in year one, they have been stretched to push trusts further. ‘For example, one of the first actions is on using the perinatal mortality review tool. In year one, hospitals signed up to using the tool, but in year two the stretch is to bring the number of reviews using the tool up to 50%.’

Dr Steele says the safety actions are similar to the old maternity risk standards, but in the new scheme trusts self-certify compliance.

‘The new incentives scheme puts the emphasis on trust boards to certify the trust and report back to NHS Resolution. Each safety action has been developed by the relevant bodies, such as the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives when the action is around training or staffing,’ Dr Steele adds.

‘It’s quite a collaborative piece of work nationally, coming from clinicians rather than the legal side.’

Achievement impact

Jenny Hannon, director of finance at Liverpool Women’s NHS Foundation Trust, says achieving the 10 actions in the maternity incentive scheme is incredibly important to the trust.

‘It’s fundamental, as maternity is a big part of what we do,’ she says. ‘The introduction of the standards has been fantastic in terms of supporting these improvements. It’s been positive and has gone down well with the maternity division.’

The trust did not achieve all 10 actions in year one of the scheme, but is confident it can do so in year two. ‘We were really hard on ourselves in the self-assessment in terms of evidence. Unless it was 100% there, we did not sign ourselves off,’ Ms Hannon says.

After self-certifying that it had only met nine of the 10 actions in year one of the incentive scheme, the trust developed an action plan and received some funding from the incentive scheme pot to tackle the outstanding issues in year two. The focus of this work has been to strengthen in-house multidisciplinary training. Ms Hannon says: ‘We received around £170,000 to put towards getting ourselves to that higher standard. We invested in staffing and gave people headroom to get it done. The response of the teams has been positive, and they’ve refocused the way they train.’

While patient safety, service quality and outcomes are the driving factors, the 10% incentive rebate remains important. The trust’s total maternity contribution is £9.6m in 2019/20, so it stands to receive around £960,000 if it achieves all 10 actions this year. Ms Hannon says this rebate is a significant element in the trust’s cost improvement programme.

She feels the board focus on the maternity incentive scheme has been particularly strong because it is a specialist women’s trust.

‘We are close to this as a board of directors and we are working closely with the service to support it. It has a greater impact on us than other providers and the positive impact of achieving the standards is potentially more far-reaching.’

Across England, in year one (2017/18), 75 of the eligible 132 trusts met all 10 actions, receiving their 10% rebate and a proportion of the remaining funds. The 57 trusts that did not meet all 10 received some funding, linked to their action plans.

NHS Resolution said the actions have made a demonstrable impact, including a significant improvement in the quality of reporting to NHS Digital (maternity data sets) and to its second safety programme, the early notification scheme.

Early notification scheme

The early notification scheme is a good example of NHS Resolution’s efforts to move away from litigation and towards a more collaborative approach to clinical negligence claims.

Under the early notification scheme, trusts must notify cases of potential severe brain injury to NHS Resolution within 30 days of birth. Liability investigations begin straight away. In 2017/18, 746 cases were notified, and investigations were carried out in 26% of these cases.

At the conclusion of the case, admission of liability leads to the family being given a case manager, an explanation of what went wrong, a formal admission of liability and an apology.

Under the old system, this process could take years. Now, where it is clear a child needs extra help, the early admission of liability means NHS Resolution can offer financial support to access additional care and respite services.

Sangita Bodalia, NHS Resolution’s head of legal (early notifications team), says the early notification scheme has three aims. First, NHS Resolution believes it will speed up the liability investigation, which can take years to complete. Second, learning from the investigation can be shared with the provider and, if appropriate, other trusts to improve clinical quality and safety, she adds.

Outputs and knowledge gained from the early notification scheme and other sources are used to inform the maternity incentive scheme safety actions each year.

‘The final aim is to improve the experience of families,’ says Ms Bodalia. ‘Families don’t always get the care and support they need. An early identification means we are able to look at the support the family needs.

‘I always say to the trust that they need to keep the dialogue going, as often care is continuing at the trust. When the investigation is concluded and the family has an outcome, we support the hospital trust legal team and the family is supported with what they need. In the past we were perhaps too reliant on the courts.’

Previously, a significant amount of time could elapse before NHS Resolution became aware of a potential claim. ‘We didn’t have the opportunity to investigate it early,’ Ms Bodalia says. ‘But under the early notification scheme, rather than waiting for the claim to come in, we hear as soon as the incident has happened, so we are involved right from the start. It gives us a chance to look at the incident, gather the information and read the medical records.’

She adds: ‘We are taking a holistic approach, rather than just making large payments. We are trying to take this approach so families get the right support and the compensation paid is fair and reasonable. By reporting early and capturing a potential claim early, there’s an aim to accelerate the investigation and improve value to reduce costs throughout the process. Of course, reducing costs is not the primary aim.’

The maternity incentive and early notification schemes work in tandem to drive improvements in care quality and safety.

Ms Bodalia says: ‘With the early notification and maternity incentive schemes we can get to the heart of the incident a lot more, accelerate the liability investigation, share learning and improve the experience for families. But everybody needs to buy into it – every stakeholder needs to engage.

‘We don’t want a blaming approach for individuals; we want to ensure that we can share learning. The blame culture is still out there, but we are trying to eradicate that and introduce a just culture rather than a blame culture.’

While health problems caused by clinical negligence during births are thankfully rare, clinicians and managers are keen to minimise incidents through prevention and best clinical practice.

The incentive funds will always be useful, and there is a need to ensure best use of public money, but trusts insist that the overriding factor will always be safety.