On 26 March 2019, the Government launched a consultation on proposals to give coroners the power to investigate stillbirths. At present, coroners are only permitted to hold an inquest – a legal investigation to establish the circumstances surrounding a person’s death - for babies who have shown signs of life after being born but have sadly passed away (often described as a ‘neonatal death’).
In situations where an otherwise uneventful pregnancy has ended in stillbirth, it is the responsibility of the hospital caring for the mother to investigate the circumstances leading up to the stillbirth. A baby who dies before birth has not become a legal person in their own right.
Former Health Secretary Jeremy Hunt made a statement in November 2017 about the Government’s new strategy to improve safety in NHS maternity services, which included an announcement that from April 2018 the Healthcare Safety Investigation (HSIB) would investigate every case of a stillbirth and neonatal death notified to the Royal College of Obstetricians and Gynaecologists (RCOG) Every Baby Counts Programme. The Government also announced that it would look closely into enabling full term stillbirths (those born at 37 or more weeks gestation) to be covered by coronial law.
Sadly in the UK, nine babies are stillborn every day and around a third of stillbirths are categorised as unexplained. The current process involving an internal investigation at the hospital where the stillbirth occurred or the mother is being cared for has been acknowledged to be inconsistent and often leaves bereaved parents with very little understanding of why their baby has died. There have been calls for some time for a more transparent and independent process.
Under the proposed new system:
Justice Minister Edward Agar said: “Although we have robust processes in place…to investigate stillbirths…the use of coroners to investigate them in an open and transparent way would not only help bring closure to families who have suffered this tragedy but would also help us to learn lessons for the future to help reduce the number of stillbirths.”
Amy Milner, associate in Penningtons Manches' clinical negligence team in Guildford, commented: “Unfortunately we are coming across an increasing number of bereaved parents who have had a stillbirth or have lost their baby in the neonatal period. Obtaining compensation is not a driving factor for parents to seek legal advice and instead they often want to gain answers to questions about what went wrong to help them come to terms with their loss and, if appropriate, to identify any contributing medical factors which may assist them in future pregnancies. More often than not, parents feel that taking legal action is the only way for them to understand what happened.
“The most common things that parents of stillborn babies ask us are “Is it something that we did wrong?” and “Could anything have been done to prevent it?”. Whilst we can usually obtain answers to these questions, we can only do this by instructing an independent medical expert to review the papers and to prepare a report, which can take time and cost money.
“We have first-hand experience of how beneficial the inquest process can be for bereaved parents, particularly when the medical staff involved adopt an open approach to the coroner’s investigation. For this reason we very much welcome the current proposals not only so that parents can find out more clearly what went wrong, but also to ensure that the reasons for the UK’s stillbirth rate can be examined more broadly.”