Two lessons this solicitor has taken from the Ockenden Report

Last week Donna Ockenden produced her comprehensive, considered, and heart-breaking report[1] into maternity care across at the Shrewsbury and Telford Hospital NHS Trust. Throughout those 250 pages she placed patient experience and the stories of those brave families who came forward at the heart of her report. Anyone who has taken the time to read the report’s conclusions can be in no doubt that something is broken within our NHS and, in particular, with respect to maternity care.

I am sure that there will be much commentary and thoughts being expressed about the details within those pages: there is simply so much to say and so much to learn. Without wishing to add yet another voice to the articles out there (although I do note that, as too often is the case, the lessons and stories within these pages have now fallen out of mainstream media reporting), I wanted to discuss two key themes which, at least for me as a claimant clinical negligence solicitor, came though.

Patient choice in maternity care

A key theme which struck me, perhaps because I am reaching that age where many of my nearest and dearest are accessing maternity services themselves, was the fixation the Trust’s maternity teams placed on women undergoing a natural birth. Within the Ockenden report it is noted that women were made to feel that a natural birth was their only option and there were yet further examples of families feeling as if their thoughts and concerns were not being listened to.

This certainly struck a chord with me as I recalled a conversation with a close friend 12 months ago when she was undertaking her own birthing plan. She had read the literature and NICE guidance surrounding a planned caesarean section vs natural birth and her preference was for the former. From her own lived experience, she had seen more close friends be rushed in for an emergency caesarean and all the trauma that went along with that and, having balanced the risks and benefits of both delivery options, she wished for a planned caesarean. Yet, when she discussed this with her treating clinicians, they were aghast at such a suggestion, and they did all they could to push her down the natural birth route. She had to fight incredibly hard for her and her husband to have the birth plan they wished for and without support from the charity Birthrights[2], several long letters, a request to change consultant and some ad hoc advice regarding Montgomery (the leading case on consent and patient choice), she would never have got there. Not everyone will and can be that tenacious.

If Montgomery has taught us nothing, it is that patient choice and the patient’s voice should be at the heart of matters. It is arguable that it should not have taken Montgomery to change matters, as the BMA had been saying for years risk is both objective and subjective and clinicians should be taking the particular concerns of their patients on board, yet with maternity care, we still seem to be operating in a paternalistic sphere where a woman’s voice and her concerns are not being listened to.

Learning from mistakes

Another theme which rang out throughout the report was the systemic failure to learn from mistakes, which I dare say is not unique to either this Trust or maternity care. I would like to think that those working in my profession would agree that we see the same themes time and time ago: whitewashed internal investigations that gloss over the key issues and Trusts who make the same mistakes over and over again. It is clear that, by marking their own homework, Trusts do not learn, and it is arguably questionable how much they learn from external “independent” organisations such as the HSIB. So where does clinical negligence litigation fit into all of this?

In May 2021, Getting It Right First Time (GIRFT) and NHS Resolution (NHSR) produced a best practice guide for clinicians and managers on how to learn from litigation claims. Why it took until 2021 to produce such a guide I do not really understand, but leaving that aside, it was noted in that report that quite often frontline clinical staff did not know about claims arising from care and treatment provided in their department let along their own hospital, or other hospital Trusts. Litigation is not and should not be a barrier to internal learning and information sharing within a Trust and yet, for some reason, it is seen as so. This is not the claimant’s doing, but it is a failure by Trusts and NHSR to ensure that themes are being identified and addressed. NHSR collects data on individual Trusts, as they use such data to calculate the premium each Trust must pay into the Clinical Negligence Scheme for Trusts. Why isn’t more information being gathered? Why are Trusts looking to attribute blame when investigating matters, rather than focusing on the root cause that caused the incident to arise?

Some final thoughts on claimant shaming

Too often we see the claimant being blamed: the costs are too high, and the system needs to be reformed so we have “no fault” damages. Let’s tackle those two issues head on shall we, particularly when the Medical Defence Union are suggesting to MPs that the new national insurance levy will be “swallowed up” by clinical negligence claims!

The costs associated with clinical negligence litigation have remained relatively static over recent years and in fact the most recent NHSR data reveals that the legal costs associated with bringing a claim are, in fact, going down. It should also be noted that unlike claimant solicitors, who in the vast majority of cases act on a CFA (“no win no fee agreement”) and do not get paid unless they are successful, defence solicitors are paid regardless of outcome. Defence experts and barristers often charge significantly reduced rates to their NHSR or medical indemnifier clients, whereas claimants must pay market rates. Some judges are alive to that fact, and it is heartening to hear this acknowledged when attending a court hearing dealing with legal costs: yet those who do not work in this area often are not.

Secondly, no fault damages will arguably engender an even greater culture of failing to learn from mistakes and understanding precisely what went wrong. Certainly, in my practice, most claimants end up at my door after going through an internal complaints procedure and not having their concerns addressed. Often patients are reassured that changes will be made and yet they see little to no evidence of that happening. Litigation, for a claimant, provides an avenue for answers which too often a Trust or private healthcare organisation is unwilling to give.

Claimants do not seek out a solicitor because they do not appreciate, love and respect the NHS system which cared for them: they do so because they care for it and they want to ensure that the same issues do not arise again. They want to fix what is broken as well as ensuring that their own lives, which are too often shattered by instances of negligence, are put back together as best they can be.

[1] https://www.gov.uk/government/publications/final-report-of-the-ockenden-review

[2] https://www.birthrights.org.uk/factsheets/right-to-a-c-section/#:~:text=You%20might%20be%20advised%20to,your%20baby%20to%20be%20born.