The COVID-19 pandemic is raising all sorts of legal, ethical and patient safety issues across the NHS. For example, expectant mothers are turning to freebirthing because homebirths have been cancelled due to the pandemic (Summers, 2020). This choice can have major health implications if complications occur during birth and professional help is not at hand.
Restricting patient choice in a crisis
More than a fifth of birthing centres and more than a third of homebirth services have been closed due to midwifery shortages (Summers, 2020), and there are concerns about how quickly ambulances can respond to emergencies.
‘The evidence for the safety of birth settings that are not co-located with an obstetric unit is based on the availability of ambulance services to enable rapid transfer, and appropriate staffing levels. If these are not in place, it may be reasonable to rationalise the provision of these services.’
Expectant mothers are also concerned about both the possibility of contracting COVID-19 from hospital and restrictions on birthing partners. The charity Birthrights released a statement, which also highlights the problems:
‘We have also been inundated with concerns about the removal of homebirth and birth centre options without thorough investigation about how staffing and safe transfer challenges could be addressed. We believe that this action may be unlawful and could lead Trusts to be responsible for significant risk to life if women choose to birth without medical assistance.’
Legal, ethical and patient safety issues
Clinical negligence
Hopefully clinical negligence cases will not result from the maternity situations discussed above, but given the growing trend for claims it is not an improbable outcome. A mother may claim that she and her baby has suffered avoidable injury through not getting proper midwifery support for a home birth when complications developed. Allegations could also be made that there were unreasonable delays in getting emergency transport from home to hospital. These scenarios raise complex issues of tort law, and there are established precedents that would help determine whether there was a breach of a duty of care. Powers (2020) discusses the legal standard of care issue in the Corona crisis and the approach taken in the case of Mulholland v Medway NHS Foundation Trust [2015]. This case may offer some reassurance to clinicians in the pandemic in that one High Court judge has been willing to take context into account when considering the standard of care in an emergency setting.
‘It remains to be seen what approach the courts will take in relation to the coronavirus crisis. In addition to the pressures on individual clinicians around issues such as diagnosis and treatment planning, there are likely to be numerous systemic problems. These are likely to include delays in diagnosis and failure to treat progressive conditions due to unavailability of equipment and unavailability of staff. The challenge for the courts will be balancing the rights of injured people with the pressures at play on the system as a whole.’
Negligent birth injuries
Negligent birth injuries bear an immeasurable emotional cost for all concerned, and money can never fully compensate for the death or injury of a child. Errors made at the birth of a child do incur high financial costs to the NHS.
‘Obstetric incidents can be catastrophic and life-changing, with related claims representing the scheme's biggest area of spend. Of the clinical negligence claims notified to us in 2018/19, obstetrics claims represented 10 percent (1068) of clinical claims by number but accounted for 50 per cent of the total value of new claims, £2465.5 million of the total £4931.8 million.’
NHS Resolution (2019) states that hospitals now pay around £1100 per birth in indemnity costs. A right to claim compensation from patients who have been negligently injured by those who were meant to care for them should never be compromised. They have a legal and moral right to claim compensation. Patient safety in obstetric care is an important NHS priority (RCM and RCOG, 2020).
Nurses, midwives and doctors between a rock and a hard place
NHS resources are finite and demands on them in the pandemic are rapidly changing as the virus progresses. Services are being reconfigured as a necessary consequence of meeting developing trends. At the same time, the NHS must also cope with traditional and other pressing clinical needs and issues. Children will continue to be born regardless of the pandemic and the rights of all the parties need safeguarding. Patient safety issues are paramount, and we always need to be aware not to put them on the back burner.
Each baby counts: 2019 progress report
The Each Baby Counts national quality improvement programme aims to reduce the number of babies who die or sustain severe brain injuries during term birth. The 2019 progress report contains several patient safety findings that can equally apply to other clinical specialisms in the NHS (RCM and RCOG, 2020). The report discusses clinical escalation in maternity care which it states is a complex process. It is a process, according to the report, that requires a combination of clinical, behavioural and logistical steps to correctly identify and deliver urgent care. In the analysis for the report, at least one reviewer felt that ‘failure to escalate/act upon risk/transfer appropriately occurred in 36% (358/986) of reports’. The report states that this was as a result of either a lack of awareness of deterioration and the need to escalate, or a breakdown in the process of attempted escalation. Underlying themes were human factors and behaviour; workload and workforce challenges; and errors in communication methods (RCM and RCOG, 2020).
These themes can be seen in many reports concerning other clinical specialities and are common patient safety failings, not restricted to maternity care.
The report provides several key learning points, which include, cognitive biases, loss of situational awareness, multidisciplinary team dynamics, challenging a decision, timely obstetric reviews, handover and emergency escalation protocols. The report develops these issues and makes several recommendations:
Don't be afraid to speak up
A key issue that I have seen in many past patient safety reports is the issue of challenging a decision, speaking up when something concerns you.
‘All members of the multidisciplinary team must feel empowered to challenge a decision that they feel is incorrect. Where there is disagreement, a third party should be called to provide another opinion and fresh perspective.’
There is a discussion in the report of ‘flattened hierarchies’, cultures where junior staff feel able to speak up about safety concerns to senior colleagues and others:
‘It removes the assumption that the decision of the most senior doctor or midwife is final and promotes an environment of psychological safety for staff to speak up, challenge seniors when needed and request a second opinion without repercussions.’
Communication
In my previous BJN columns, poor communication strategies have featured strongly as a major reason why adverse patient health-care events including clinical negligence takes place. If we improve our channels and methods of communication, then we will have less health care litigation and complaints. Good communication strategies between clinicians themselves and with patients are seemingly simple to achieve. It is a basic skill requiring the nurse, midwife or doctor to practice reflectively and professionally. However, in practice this is easier said than done. Patient safety reports continue to be replete with communication errors causing death and personal injury. Failing to pass on, state or record key patient information is unforgivable by any measure. There is a discussion in the report handovers between individuals and teams, emergency communication protocols. In terms of handover, the report offers useful advice that will apply to all clinical specialities across the NHS:
Things you can do
There must be clear ownership of responsibility between those giving and receiving the handover to record accurate information. Interruptions should be kept to a minimum and structured communication tools used to effectively to transfer large volumes of information.
Lesson learning and application
This report is an excellent analysis of patient safety issues in maternity care; its value also lies in the fact that it is possible to export, extrapolate and apply its findings and advice to other care settings as well. The report contains several scenarios and case studies that can be used as patient safety teaching aids.
Conclusion
We are living worrying and uncertain times where NHS staff are working in a ‘warzone’. They are practising heroically in constantly evolving and stressful environments. These new environments of care can be seen to be raising pressing patient safety, legal and ethical care issues. Maternity rights are one such issue being raised (Summers, 2020).
RCM and RCOG (2020) provides an important patient safety backdrop and education, training tool to the wider issues of safe maternity care which can also be applied to other clinical specialities in the NHS.