The cost of birth trauma

This article first featured on Law Gazette

Earlier this month, Joshua Rozenberg urged the new Labour administration to “...rediscover joined-up government”, highlighting the dividends that investment in the justice system could pay back to other departments, not least the Treasury.

The inverse, he pointed out, is also true in that unrealistic spending cuts imposed on the Ministry of Justice inevitably cost the country more, in the long term.

Our dilapidated justice system is littered with wasteful examples, from the court and tribunal backlogs caused by unmaintained infrastructure to the criminal trials delayed because there aren’t enough prison staff to bring the accused to court.

But justice has also suffered from underinvestment elsewhere, not least in healthcare, where rather than address the underlying causes of clinical negligence, it was easier to blame victims and attack those who stood up for them.

It is now more than 4 months since the All-Party Parliamentary Group on Birth Trauma published its report Listen to Mums.

While the individual stories recounted across the media for a few days in May were profoundly distressing, the shocking prevalence of maternity care failings was almost lost among the other national scandals grabbing headlines over the summer, from the Post Office prosecutions to infected blood and, more recently, Grenfell.

For years, the extent of birth trauma seems to have been masked by the fragmentation of the NHS. The time and distance between each scandal coming to light made them seem isolated and remote.

If it was hard to join the dots between a number of hospitals each with its own specific issues, the Birth Trauma report brought a bigger picture into focus.

Shortages of equipment and staff, inadequate training, cultures of bullying, secrecy and denial weren’t historic problems exclusive to a few trusts. The issues were widespread and, in some cases, endemic.

Stark as the title ‘Birth Trauma’ may seem, it still understates the scale and true cost of the scandal. We now know that hundreds, if not thousands, of babies and mothers died avoidable deaths, and even more were left with life-changing and life-limiting injuries.

Aside from the terrible human toll, the financial cost of clinical negligence in maternity care would make a significant scandal, in its own right.

According to the most recent annual report from NHS Resolution, total clinical negligence payments relating to maternity failings amounted to £2.8 billion, in the last year alone. This is very close to the total, annual NHS budget for maternity care in England.

Over the years, we’ve seen attempts to reduce claimant legal costs in medical negligence, but such initiatives can only ever chip away at less than 20% of the financial problem.

The most certain path to reducing legal costs is to reduce the number of claims. Besides, however much we try to reform the legal process, it will never save a life.

It is still unclear when we will see the fixing of recoverable costs in lower value clinical negligence cases. Whatever the merits and potential flaws of the current proposals, trying to limit the legal cost of clinical negligence is treating a symptom and not the cause.

As well as a ‘joined-up’ approach to government, we need a more patient one. The short-termism that saw ten Lords Chancellor in as many years inevitably led to quick fixes, scapegoating and headline-grabbing initiatives that were never going to deliver long-term gains.

The improvements in maternity care that are so desperately needed aren’t easy and won’t be delivered overnight, but they are very clear and highly achievable.

There would even be some collateral benefit back to the MoJ in fewer long and complex cases sitting in the backlogs, awaiting their days in court.

Such objectives won’t be reached without investment, at a time when the purse strings have been conspicuously tightened, but the returns are about as certain as any in public spending and should be seen in the medium term, at least.

It will take a ‘joined-up’ approach to government to make it happen.