Written evidence submitted by NHS Resolution (MSE0057)
Evidence Submission for the Health and Social Care Committee Inquiry – Safety of maternity services in England
NHS Resolution 4th September 2020
Contents
Introduction...... 3 Part 1 – NHS Resolution’s functions and role in maternity services...... 3 Part 2 – Responses to the committee’s questions ...... 3 Question 1: ...... 3 Question 2: ...... 6 Question 3: ...... 9 Question 4: ...... 11 Question 5: ...... 12 2 Introduction
1. Maternity services in England are very safe however where something does go wrong, the consequences can be devastating, for the family and for the healthcare professionals involved. The human costs are incalculable and the financial costs of compensation claims are significant with maternity consistently resulting in the single highest cost of claims against the NHS in England. In 2019/20 NHS Resolution paid out £2.3 billion in compensation and associated costs for maternity claims equating to 40% of payments overall. 1 The estimated compensation costs of maternity incidents during the 19/20 year under our main indemnity scheme, the Clinical Negligence Scheme for Trusts (CNST) is £8.3 billion, of which 69% relates to maternity. 2
2. NHS Resolution provides indemnity for these compensation costs to all providers of NHS maternity services in England. From 1st April 2019 we also indemnified General Practice. Whilst GP care is important to the overall maternity care pathway, as our role in this area is new and the scheme is maturing we have focused on our response on our experience of secondary care. It should also be noted that the schemes we operate respond to NHS care and do not extend to privately provided healthcare.
3. We are not a regulator and our ability to influence care or enforce standards is limited, however like many other insurers and indemnifiers internationally we have sought to use what we know from the claims we receive to inform and where possible, incentivise improvement. Collaborative working is key to our work in convening those who can directly influence improvement, sharing what we know and securing consensus on how we should use the pricing levers we hold.
4. Significant challenges remain and there is more to do, particularly in ensuring that learning derived from claims reaches the healthcare staff who can act on it, to remove perceived barriers to candour and to better support healthcare staff in responding to incidents.
5. This memorandum sets out NHS Resolution’s role in relation to maternity services, describes the work we have undertaken so far and addresses the committee’s questions on improvements which could be made.
Part 1 – NHS Resolution’s functions and role in maternity services
Constitution
6. NHS Resolution (formally known as the NHS Litigation Authority) is an Arm’s-length Body (ALB) of the Department of Health and Social Care (DHSC). It is a Special Health Authority established further to s. 28 of the National Health Service Act 2006 (which is derived from the National Health Service Act 1977).
1 NHS Resolution: Annual report and accounts 2019/20 2 The annual ‘cost of harm’ for a particular financial year represents the cost of claims, both those received and those expected to be received in the future, from incidents in that financial year
3 Indemnity schemes
7. One of NHS Resolution’s main functions is to administer clinical and non-clinical indemnity schemes for meeting losses and liabilities of NHS bodies in England. The main scheme of relevance to this inquiry is the Clinical Negligence Scheme for Trusts (“CNST”), which covers clinical negligence claims in relation to incidents taking place on or after 1 April 1995. Whilst CNST voluntary all NHS trusts providing maternity services are currently members.
8. CNST works on the basis of risk pooling and is ‘pay as you go’. This means that each member makes annual financial contributions to meet the payments which are expected to be made in the relevant year. Contributions are influenced by a range of factors: the type of organisation, its workforce, the specialties it provides, and its own claims history, as well as trends in the costs of claims across the broader NHS.
9. From 2019, GPs and their staff have also been covered by a new indemnity scheme for general practice which operates on a centrally funded (non-membership) basis. This brings information in claims for primary and secondary care under one roof for the first time and whilst claims experience will be low in the early years of the scheme, there is a valuable opportunity to bring information on maternity care in both General Practice and hospitals together for learning as the scheme matures.
In addition to the indemnity schemes, NHS Resolution has a number of other functions. These comprise:
Practitioner Performance Advice Service (formerly National Clinical Assessment Service)
10. The Practitioner Performance Advice service provides impartial and expert advice to healthcare organisations to support the local management and resolution of performance concerns relating to doctors, dentists and pharmacists at all grades. It also provides clinical performance and behavioural assessments of individual practitioners as well as assisted mediations to help resolve workplace difficulties between colleagues. Remediation and return to work action plans for individual practitioners can also be developed in order to support their return to safe and effective clinical practice. Practitioner Performance Advice also delivers education programmes designed to help healthcare managers deal more effectively with concerns about individual practitioners and manages the Healthcare Professional Alert Notices system, which informs NHS bodies and others of health professionals whose performance or conduct gives rise to concern, as an additional safeguard to protect patient safety. All of these activities are directed towards supporting the early identification, fair and effective management, and satisfactory resolution of concerns in the interests of patient safety and public protection.
Primary Care Appeals
11. The Primary Care Appeals service is responsible for ensuring a prompt and fair resolution of appeals and disputes between primary care providers and those wishing to provide primary care services (including GPs, dentists, opticians and pharmacists) and NHS England.
12. More information about NHS Resolution’s services can be accessed from the following links:
https://resolution.nhs.uk/services/claims-management/
4 https://resolution.nhs.uk/services/practitioner-performance-advice/
https://resolution.nhs.uk/services/primary-care-appeals/
How we manage claims for compensation
13. The majority of our work with maternity trusts involves managing the indemnity schemes and compensation claims which are reported to us.
14. Historically, we have not been involved until a formal claim for compensation is lodged. This can be many years after the incident and a great deal may have happened in that interim period such as a local investigation or a complaint. In secondary care, the legal defendant is always the NHS trust, not an individual clinician. We take over the management of the claim on behalf of the trust, although they will be responsible for liaising with clinicians who may be involved in the incident to take statements and supply records for disclosure, etc.
15. Once a claim is reported to us, we will liaise with the patient/their lawyers. Our objective is to resolve claims quickly and fairly, and with the minimum of unnecessary costs. 71% (2019/20) of the claims we receive are resolved without formal court proceedings and, in these early stages, more claims are resolved without payment of damages than with payment of damages. Around one third of claims end up in litigation, sometimes to determine the amount due or because court approval of a settlement is needed but most of these are resolved and fewer than 1% of claims overall go to a full trial.
16. Our assessment of claims is conducted within the existing legal framework and often, with the help of expert medical advice. Whilst the expert’s duty is to the court, it is not unusual to have two experts who disagree on the standard of care and/or whether the outcome would have been different had better care been provided.
Mediation
17. In the past, mediation has had a low profile in compensation claims brought against the NHS. As part of our ambition to improve the experience of claiming compensation for families and healthcare staff and to keep cases out of court, NHS Resolution has sought to make mediation mainstream and has gained considerable traction with this with year on year growth in the number of cases mediated which have exceeded 1,000 since the initiative began. Mediation has a powerful role to play in maternity cases, providing a confidential space for issues to be explored in all their complexity and where it is wanted, for families and the healthcare team to be brought together to provide face to face explanations and apologies.
Early Notification Scheme (EN)
18. A large part of our liabilities relates to a small number of cases involving brain injury at birth. Approximately 230 such cases are received annually of which on average half are ultimately resolved for a damages payment, typically comprising a lump sum up front for immediate needs (such as adapted accommodation) and annual payments for care costs for life. The historic time-lag between these very serious incidents occurring and a claim being reported has in the past hampered our ability to engage with the trust in real time, to derive learning
5 from the event, to investigate whether there is an entitlement to compensation and to deliver interim compensation payments in the early years which can make all the difference to families, such as for respite care or counselling.
19. This is why on 1 April 2017, in line with the launch of a new 5 year strategy, NHS Resolution introduced an Early Notification (EN) scheme for the early reporting of infants born with a potential severe brain injury following term labour. EN aims to support the government priorities to halve the rates of stillbirth, neonatal death and brain injury and improve the safety of maternity care, while also responding to the needs of families where clinical negligence is identified. The scheme also aims to improve the experience for NHS staff by speeding up the legal process and rapidly sharing learning from avoidable harm. Trusts are required to report incidents which fit criteria defined by the Royal College of Obstetricians and Gynaecologists (RCOG) to NHS Resolution within 30 days rather than waiting for a formal claim for compensation to be commenced.
Maternity Incentive Scheme (MIS)
20. Now in its third year, this scheme supports the delivery of safer maternity care through an incentive element to trusts’ contributions to the CNST. The scheme, developed in partnership with the national maternity safety champions, Dr Matthew Jolly and Professor Jacqueline Dunkley-Bent OBE, rewards trusts that meet ten safety actions designed to improve the delivery of best practice in maternity and neonatal services. The actions are not designed by NHS Resolution in isolation but are developed and owned by others leading on maternity safety (such as the Royal Colleges) who form a collaborative advisory group to the scheme. The current actions and verification process can be accessed via the following link and a revised version of the scheme is due to be launched in the coming weeks, following a pause during the pandemic.
https://resolution.nhs.uk/services/claims-management/clinical-schemes/clinical-negligence- scheme-for-trusts/maternity-incentive-scheme/
Safety and Learning
21. NHS Resolution has developed a safety and learning function. The service supports the NHS to to better understand claims risk profiles to target their safety activity as well as sharing learning from claims nationally. We employ clinical fellows to support this work and to undertake ‘deep dives’ into the causes of claims for example our report learning from five years of cerebral palsy claims:
https://resolution.nhs.uk/resources/five-years-of-cerebral-palsy-claims/
Part 2 – Responses to the committee’s questions
Question 1: What the impact has been of the work which has already taken place aimed at improving maternity safety, and the extent to which the recommendations of past work on maternity safety by Trusts, Government and its arm’s-length bodies, and reviews of previous maternity safety incidents, are being consistently and rigorously implemented across the country;
22. We will focus on the role of NHS Resolution as an indemnifier as described in Part 1 and the impact of the work which we have contributed to as one part of the maternity safety system. It is important to distinguish between process impact, which we can demonstrate,
6 and outcome impact, which has to be demonstrated as part of overall maternity safety metrics.
23. Claims are a poor measure of safety as they relate to incidents which have occurred over many years into the past and are influenced by external factors such as the legal market. Nevertheless, improvements to safety are the best way of achieving reductions in maternity claims in the longer term. The total value of maternity claims for brain injury continues to increase however whilst claims volumes in this category have varied historically between 180 and 230 they have been on a downward trajectory in recent years.
Figure 1: The number and total value of claims reported to NHS Resolution for maternity cerebral palsy/brain damage claims in 2019/2020
24. NHS Resolution’s recent work to improve maternity safety, as described in Part 1, has focused on three areas; incentives, early notification of incidents and thematic analysis of claims. In addition we work closely with trusts to make them aware of their own performance in terms of the claims and incidents reported to us.
Incentives
25. The CNST pricing methodology is designed to incentivise improvement, with trusts who are able improve their claims experience seeing the benefit in their price, relative to others over time. As the highest costs concern a small number of maternity incidents, which may not impact on pricing for 7-10 years, a stronger approach to incentives has been developed for the scheme for maternity trusts. Through the Maternity Incentive Scheme (MIS), NHS Resolution has acted as a convener of key bodies in the maternity sector. Safety actions are designed, reviewed and updated in partnership with a collaborative advisory group which includes, amongst others, NHS England and Improvement, the CQC, the RCM, RCOG,
7 MMBRACE and NHS Digital. Year-on-year, the safety actions are revised in line with best practice and are responsive to emerging themes and concerns. . 26. Implementation of the scheme has driven increased registration with Mothers and Babies: Reducing Risk through Audits and Confidential Enquiries across the UK to access the National Perinatal Mortality Review Tool (MBRRACE-UK) and improved reporting to the National Maternity Services Dataset. This means that births are being monitored more effectively, issues identified sooner and information shared more rapidly across the system.
27. Trusts have stated that the MIS has enabled them to make staff appointments, such as quality and safety programme leads, which will help them in achieving higher levels of quality and safety. Ultimately, we hope this will reduce harm and claims3 and demonstrates that NHS Resolution can play a system integrator role beyond our original narrow remit.
28. As part of the interim evaluation of the scheme published in April 2020 we noted that there was a need to strengthen the self-certification of submissions.4 As a result, NHS Resolution has taken a number of steps to deter mis-certification and has taken an increasingly robust approach with trusts over the data submitted as part of the scheme.5
29. While NHS Resolution cannot isolate the quantitative impact of the maternity incentive scheme from other maternity initiatives, the scheme has been successful in driving practice improvements. The results for year two of the scheme show that 116 out of 130 trusts (89%) certified as having achieved all ten safety actions, which represents a significant uplift on the position in the first year6.
30. NHS Resolution published the interim evaluation7 of the scheme in April 2020. Participating trusts indicated that the safety actions give greater prominence to the actions required to increase the awareness of maternity safety at board level, and have greater influence for multi-disciplinary working, e.g. across anaesthetic and neonatal services. 86% of the trusts reported that as a result of engagement in the maternity incentive scheme there had been improved communication between boards and maternity services, which had resulted in increased support for the implementation of all safety actions.
31. The scheme has received interest internationally and for example, in Victoria Australia a similar scheme has been brought into operation, where we are sharing experience.
Early notification
32. In September 2019 NHS Resolution published a report of its experience of the first year of operation of the Early Notification scheme. This was followed by a highly acclaimed national maternity conference chaired by Baroness Cumberlege and Sir Cyril Chantler, bringing together healthcare leaders and maternity staff from across the country. The report noted
3 Our refreshed strategic plan pp.4-8 4 Maternity Incentive Scheme - an interim evaluation p.4 5 See Maternity incentive scheme year 2 (2018/19): verification process
8 significant reductions in the time between an incident occurring and admissions of liability being made.
33. At 16 July 2020, 24 families have received an admission of liability, formal apology and in some cases, financial assistance with their care and other support within 18 months.8 As of 31 March 2020 there have been 51 admissions of liability. This short duration is unprecedented for claims related to brain injury and/or cerebral palsy.9
34. In addition, the EN progress report outlined six recommendations to influence changes in clinical practice for maternity services in relation to candour, staff support, fetal monitoring, impacted fetal head, maternal deterioration and hyponatraemia. EN publishes regular, anonymised case studies targeting specific areas of claims incidence in maternity care targeted at maternity staff. The issue of impacted fetal head at caesarean section is an emerging safety issue which has been specifically identified in our review of EN incidents (see paragraph 54).
35. A number of these recommendations have subsequently been taken forward by those Medical Royal Colleges with an interest in maternity.
36. At a local level, the EN clinical team at NHS Resolution are engaged in real time with trusts in relation to the incidents they report, linking this with the learning derived nationally. Tangible and specific commitments to improve are discussed and documented. 10
Thematic analysis
37. The work of NHS Resolution’s clinical fellows has produced recommendations derived from thematic analysis of claims including: a. A thematic analysis of 5 years of cerebral palsy claims11 b. ‘Did You Know’ leaflets for maternity staff analysing themes and sharing maternity data c. Scorecard data12 published each year to trusts as a quality improvement tool
38. NHS Resolution also works with the NHS England and Improvement Getting It Right First Time (GIRFT) programme sharing maternity claims data with clinicians at local level.
Question 2: The contribution of clinical negligence and litigation processes to maternity safety, and what changes could be made to clinical negligence and litigation processes to improve the safety of maternity services;
39. In Delivering fair resolution and learning from harm – Our strategy to 2022 published in 2017, NHS Resolution committed to focus on maternity, as the single biggest driver of claims
8 The Early Notification scheme progress report: collaboration and improved experience for families 9 Annual report and accounts 2019/20 p.75 10 Annual report and accounts 2019/20 p.75 11 https://resolution.nhs.uk/wp-content/uploads/2017/09/Five-years-of-cerebral-palsy-claims_A-thematic-review-of-NHS- Resolution-data.pdf 12 https://resolution.nhs.uk/services/safety-and-learning/claims-scorecards/
9 costs. The new strategy reflected not just our own experience but drew on learning from the wider insurance industry and international best practice in this area. Similarly, as part of the NHS Patient Safety Strategy published in 2019, NHS Resolution agreed to support the national ambition to halve maternal and neonatal deaths and neonatal asphyxial brain injury by 50% by 2025.13
40. NHS Resolution has an important and unique role to play in maternity safety. Our role in managing the costs of claims to the health service gives us a real incentive to do all that we can to manage the cost of harm by reducing the incidence of harm. This gives a unity of purpose which underpins our strategy.
41. The initiatives described above flowed from the implementation of this strategy, driving changes to the compensation processes in the areas which are either within the control of NHS Resolution or where we can influence change. Litigation can be slow and expensive and it places families and healthcare staff in a formal, adversarial and intimidating process.
42. NHS Resolution’s approach is to avoid litigation wherever possible and to promote effective and appropriate use of alternative dispute resolution. NHS Resolution’s most recent annual report noted a reduction in the volume of formal court proceedings over the previous year and in every year since its strategy was launched.14 To illustrate the small numbers of claims which result in a trial, of the 15,500 claims which were resolved by NHS Resolution in 19/20, only 15 cases trials occurred in maternity claims.
43. The claimant legal market for clinical negligence is diverse. NHS Resolution’s experience is that the interests of patients and their families is best served by specialist lawyers who are prepared to work in a collaborative way to resolve their claim. NHS Resolution regularly tenders for its own legal panel and monitors performance against its objectives. Demonstrating an ability to support our work in learning from claims to improve safety features highly in the selection process. As a result, panel law firms provide significant support with this work at no additional cost to the NHS including events, analysis and supporting thematic reviews both at a local and national level.
44. Protracted claims can result from a badly handled incident or complaint. Research commissioned by NHS Resolution demonstrated that claimants often felt that they had not received an adequate explanation and apology for events and the majority of research participants were not satisfied with the NHS complaints’ handling process, in terms of communication (both verbal and written).
45. Research has shown that being candid in fact makes subsequent litigation less likely, not the reverse.15 NHS Resolution has continually promoted the message that saying sorry is important and is not an acknowledgement of liability16 and, support a just and learning culture for staff and patients following incidents in the NHS17.
13 NHS Patient Safety Strategy p.6 14 Annual report and accounts 2019/20 p.43 15 Telling patients the truth when something goes wrong p.17 16 NHS Resolution: Saying Sorry 17 https://resolution.nhs.uk/wp-content/uploads/2019/07/NHS-Resolution-Being-Fair-Report-2.pdf
10 46. In recognition that candour is often a challenging process, Recommendation 1 from NHS Resolution’s The Early notification scheme progress report published in September 2019 argued that communication and ‘difficult conversations’ training should form part of national and local training programmes including a curriculum for those discussing care with families who have been involved in harm. It also noted that Midwifery staff, neonatal staff, obstetric clinical leads and NHS managers have attended the ‘Finding the Words Training’ commissioned by NHS Resolution.18
Question 3: Advice, guidance and practice on the choices available to pregnant women about natural births, home births and interventions such as C-sections, and the extent to which medical advice and decision-making is affected by a fear of the “blame culture”;
47. The ‘blame culture’ is often linked with fear of litigation. However, this overlooks that claims brought against NHS maternity trusts are invariably multifactorial in nature, often reference a series of events and are rarely focussed on one individual. The claim is brought against the NHS trust, not the individual member of staff and as referenced above, the number of cases which end up in court is very small. Litigation is therefore often cited but in fact is (and very rarely) only one of a number of processes which may be involved when something goes wrong.
48. NHS Resolution has made clear that informed choice and joint decision making between clinicians and their patients are crucial in maternity care. That is why NHS Resolution published Nadine’s story- Consent in December 2019. This describes the background and outcome that led to the landmark ruling on consent (Montgomery v Lanarkshire Health Board [2015]). The adverse consequences for the family, their son and the NHS Trust involved, could have been avoided if the mother had been properly informed by clinicians, and thus enabled to make informed decisions and give informed consent about her course of medical treatment.19
Question 4: How effective the training and support offered to maternity staff is, and what improvements could be made to them to improve the safety of maternity services;
49. NHS Resolution recognises the importance of staff training and competency within the context of maternity safety. In September 2017 NHS Resolution published Five years of cerebral palsy claims A thematic review of NHS Resolution data report recommending that:20
“Cardiotocograph (CTG) interpretation should not occur in isolation. It should always occur as part of a holistic assessment of fetal and maternal wellbeing. CTG training should incorporate risk stratification, timely escalation of concerns and the detection and treatment of the deteriorating mother and baby.”
50. Through the Maternity Incentive Scheme, NHS Resolution incentivises compliance with safety action 8 which required trusts to evidence that at least 90% of each maternity unit
18 The Early notification scheme progress report p.32 19 In this case relating to known complications in pregnancies involving diabetes and the desirability of caesarean section. 20 Five years of cerebral palsy claims A thematic review of NHS Resolution data p.11
11 staff group have attended an 'in-house' multi-professional maternity emergencies training session within the last training year. Further, this links with Element 4 of the of the Saving Babies Lives care bundle21 in the requirement for staff to have training and competency assessment for fetal monitoring.
51. The Early notification scheme progress report already mentioned, includes a number of recommendations relevant to training.
52. Recommendation 3 22
“There is an urgent need for a standard approach to fetal monitoring based on the NICE guidance. Computerised CTGs should be used for antenatal assessment.
“Effective improvement strategies for fetal monitoring require in-depth understanding of the technical and social mechanisms underpinning the process and there should be more research in this area.”
53. In light of this, NHS Resolution has collaborated with arm’s-length bodies and royal colleges including RCOG and RCM to create a fetal monitoring group. NHS Resolution is in favour of prioritising research and advancements in fetal monitoring risk assessment, interpretation and human factors training in order to reduce avoidable intrapartum brain injuries.
54. Recommendation 4 to 23
“Increase awareness and research to understand the prevalence, cause and management of impacted fetal head and difficult delivery of the fetal head at caesarean section. Standardise taxonomies for impacted fetal head and difficult delivery of the fetal head at caesarean section to improve generalisability of research.”
55. NHS Resolution welcomes the work being carried out by academic partners nationally in this area and we are committed to sharing intelligence from claims and improving internal processes to make this more accessible and efficient while protecting claimant confidentiality. We have committed to work with the royal colleges and academic partners to understand the problem and develop evidence-based guidance on management protocols and skills drills for impacted fetal head.
56. Recommendation 5 to:24
“Work with existing national programmes to improve the detection of maternal deterioration in labour, including monitoring as well as the implementation of evidence-based guidance in all birth settings. Research to understand the prevalence and cause of significant hyponatraemia in labouring mothers in England should also be prioritised.”
57. NICE have committed to review the guidance on intrapartum care for healthy women and babies and NHS Resolution welcomes their invitation to inform this update with learning from claims data.
21 https://www.england.nhs.uk/wp-content/uploads/2019/07/saving-babies-lives-care-bundle-version-two-v5.pdf 22 The Early notification scheme progress report p. 47 23 The Early notification scheme progress report p. 49 24 The Early notification scheme progress report p. 8
12 58. NHS Resolution hope that changes made from these programmes of work are supported at a regional and national level such that they are sustainable where evidence demonstrates an impact on reducing harm. We are also conscious that whilst our analysis and recommendations draw attention and support, including internationally, more needs to be done in partnership with others, to ensure that good and relevant material reaches busy clinical staff.
Question 5: the role and work of the Healthcare Safety Investigation Branch in improving the safety of maternity services, and the adequacy and appropriateness of the collection and analysis of data on maternity safety;
59. NHS Resolution recognises that the Healthcare Safety Information Branch (HSIB) has an important role to play in improving the safety of maternity services. In Five years of cerebral palsy claims-A thematic review of NHS Resolution data NHS Resolution argued – of the cases reviewed as part of that publication – that Serious Incident investigations, which are intended to identify why and incident occurred and lead to actions to improve safety, (were) often found to be of poor quality and that HSIB had a meaningful role to play in their improvement.25
60. NHS Resolution already work extensively with the Healthcare Safety Information Branch in key areas such as the Early Notification scheme and the Maternity Incentive Scheme and it is our view that there is considerable further potential for NHS Resolution and HSIB to work together in future.
61. NHS Resolution also shares the view that it is important to develop the quality of information available to the NHS to drive improvements in patient care – including maternity. This is why the second Safety Action as part of the Maternity Incentive Scheme is the requirement on Trusts to submit data to the Maternity Services Data Set (MSDS) to the required standard.26
62. In addition the organisation is sharing data with the Care Quality Commission and our Maternity Surveillance – Risks and Concerns Group, and others, are actively reviewing intelligence data that is held by NHS Resolution to highlight maternity safety issues.
14 September 2020
25 Five years of cerebral palsy claims-A thematic review of NHS Resolution data p.10 26 Important notice: Maternity incentive scheme year three – summary of changes
13