The NHS' 'normal' birth drive: putting patient safety above targets

NHS Trusts have been publicly applauded for low rates of caesarean sections, with a higher rate of so called ‘normal’ births seen as an indicator of good care. In a shift of focus from this ideology, it has been announced the NHS in England will no longer limit the number of caesarean sections it performs. Will we now see the principles in Montgomery v Lanarkshire Health Board [2015] UKSC 11put into practice in maternity care?

The drive towards ‘normal’ birth

According to NHS figures, around one in four births are currently via caesarean section. This includes both elective caesarean sections planned in advance, as well as emergency procedures.

In 2012, trusts were encouraged to promote what it called ‘normal’ birth and keep the caesarean rate to below 20 per cent. This was in accordance with advice from the Royal College of Obstetricians and Gynaecologists produced in collaboration with the Royal College of Midwives and the National Childbirth Trust.

This guidance was controversial and attracted criticism at the time from maternity campaigners and doctors who were concerned reducing the availability of induction of labour, epidural and caesarean sections could result in worse health outcomes for mothers and babies, as well as increased costs associated with negligence claims arising from potentially avoidable injury.

A series of scandals

In the years that followed, there was a string of investigations into maternity care at trusts across the country which exposed numerous incidents where poor care led to devastating consequences for mothers and babies, including severe brain injury and death. A common theme in the investigations was a reluctance to perform caesarean sections despite it being clinically indicated and an ideology of ‘normal’ birth being preferred.

These so called ‘scandals’ included East Kent, Morecombe Bay and most recently the high-profile investigation led by Donna Ockenden into Shrewsbury and Telford, the catalyst for the recent change in approach.

Shrewsbury and Telford Hospitals NHS Trust have historically celebrated their low caesarean rate; this was attributed to an environment at the trust which encouraged natural childbirth with a view to keeping the number of births via caesarean section low, historically between 8 and 12 per cent lower than the national average.

One of key findings from the Ockenden report, which looked into over 1,800 cases at the trust, found there was a reluctance to conduct caesarean sections, with a culture that perceived ‘normal’ vaginal birth as indicative of good care, and a lack of freedom for mothers to express a preference for the mode of delivery. The review found earlier caesarean delivery would have avoided death and severe injury in many cases.

The Safety of Maternity Services in England Inquiry was set up to examine concerns regarding maternity services and received written submissions from various bodies, including trusts, charities, law firms, and medicolegal experts.

Concerns were raised regarding the safety of mothers and babies due to failure to advise of risks, the promotion of ‘natural’ birth and a significant proportion of claims involving cerebral palsy due to failure to perform caesarean section, with this being identified as target driven.

The report recommended an immediate end to the use of caesarean section percentages as a merit for maternity services, discouraging target driven advice for mode of delivery.

The court’s approach

The duty to warn patients of risks of treatment was based on the ‘Bolam test’; whether a doctor had acted in line with a responsible body of medical opinion.

In 2015, the Supreme Court handed down judgment in the case of Montgomery which is now the leading authority on consent. The claimant was a pregnant diabetic woman. Despite repeated concerns from the claimant about giving birth vaginally, she was not advised of the risk of shoulder dystocia, with the treating obstetrician giving evidence she routinely chose to not explain the risk of shoulder dystocia as this risk was very small, and if she did then “everyone would ask for a caesarean section”. The Supreme Court found there was a negligent failure to fully advise the claimant of the risks associated with shoulder dystocia in her particular circumstances and discuss the option of delivery via caesarean section.

The basis of the Montgomery principle is clinicians must provide information about all material risks, which is any risk which a reasonable person in the patient’s position would consider significant. Montgomery made it clear not only should patients be warned of any material risks of treatment but reasonable alternative treatments.

In A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 QB, it was found a risk of one in 1000 of a baby being born disabled was not considered a significant enough risk to be warned of and was therefore not “material” enough, with a risk of one per cent considered to be material enough. However, in Spencer v Hillingdon Hospitals[1] NHS Trust [2015] EWHC 1058 QB the court found a failure to warn the claimant of the risk of DVT and pulmonary embolism as a consequence of surgery was material, given they were aware of the significance of the risk having fitted him with pneumatic boots prior to surgery. The risk was one in 50,000 but the consequence was so severe it was deemed “material.”

This leads to the question, had the material risk been warned of, would the patient have consented to the treatment proposed? Courts take into account various factors including medical history and personal beliefs and characteristics.

In Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62 there was a failure to identify abnormalities on ultrasound. It was found the claimant’s mother would have proceeded with an early induction if advised of her options, as she would have appreciated the risks of continuing the pregnancy due to her nursing degree. In Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164, it was found the claimant was not properly advised on alternative, conservative, treatment options as opposed to spinal surgery, and had she been, she would have wanted to explore the more conservative option due to her personal circumstances, including being a mother to three children and working full time.

Looking specifically at maternity care, in SXX v Liverpool Women’s NHS Foundation Trust [2015] EWHC 4072, the mother had raised concerns about the risks associated with vaginal delivery for her twin pregnancy during her antenatal appointments. However when she went into labour, she was persuaded by a midwife to attempt vaginal delivery. Twin one was delivered via forceps delivery and suffered an intracranial haemorrhage which caused neurological disability. The court found that there was a negligent failure to refer the discussion of mode of delivery to a consultant who would have agreed to caesarean and therefore avoided the claimant’s injury. 

Putting Montgomery into practice

It remains to be seen how the recent change in approach towards caesarean section rates will impact upon patient care. While we may no longer see trusts being applauded in public for lower-than-average caesarean rates, how will the change in policy translate to practice and will we now see the principles set out in Montgomery applied to ‘real life’ maternity care?

In 2019 – 20, maternity claims equated to 69 per cent of compensation payments made by NHS Resolution. While there has been much talk of reform, the focus has been on reducing the financial cost once harm has been caused, there has been little acknowledgement from those responsible for reform that the cost of claims will naturally reduce if the harm is avoided in the first place.

It will be a while before we start to see whether claims relating to maternity are reduced as a result of this change in policy, particularly as claims relating to severe inures at birth can take many years to conclude. However, it could be argued that shifting the focus towards clinical need and away from than targets based on an ideology of what constitutes a ‘good’ birth will bring patient care more in line with the Montgomery principles; it is hard to imagine how this can seen as anything other than a positive step.

Eleanor Giblin is a solicitor and Emma-Jayne Rudland is a solicitor at Irwin Mitchell Irwinmitchell.com