The criminal prosecution of East Kent Hospitals University NHS Foundation Trust for the unsafe clinical care leading to the death of baby Harry Richford

In this post, Vanessa Cashman discusses this recent criminal prosecution regarding the failings in maternity care from East Kent Hospitals University NHS Foundation Trust. It is a landmark case, being the first time that the CQC has prosecuted an NHS Trust over failings in clinical care.

Background

Harry was born on 2 November 2017 at  Queen Elizabeth the Queen Mother Hospital in Margate, Kent. His mother’s labour was protracted and 24 hours after she was first admitted, the CTG trace became pathological. A trial of instrumental delivery was unsuccessful and Caesarean section was complicated by Harry’s head having become impacted. He was born in very poor condition. Following Harry’s birth, resuscitation attempts were mishandled and he was not intubated for 25 minutes. He sadly died on 9 November 2017, seven days later, as a result of the brain damage he had sustained during labour, delivery and postnatally.

The Trust did not report Harry’s death to the coroner until April, despite being repeatedly asked to do so by the family, on the basis that the cause of death was known and the death was “expected” given the extent of his brain injury.

Following procedural delay, a three week Article 2 inquest was eventually held. It was concluded on 24 January 2020 with Assistant Coroner Christopher Sutton-Mattocks finding seven gross failings that amounted to neglect.

In October 2020 the Care Quality Commission announced that they would be prosecuting the Trust for failing to provide safe care and treatment, which failure which exposed Harry and his mother to significant risk of avoidable harm. The charge was a breach of regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The Trust entered a guilty plea in April and have now been fined over £700,000.

This is a landmark case. It is the first time the CQC has prosecuted an NHS Trust over failings in clinical care.

Inquest findings

The key seven findings which amounted to neglect were as follows:

1. There was hyperstimulation during labour as a result of excessive use of Syntocinon;
2. When the CTG became pathological at 02.00, Harry should have been delivered within 30 minutes rather than 92;
3. Consultant care should have been given sooner during labour. A consultant should have managed the delivery;
4. The locum on duty that night was inexperienced and had not been properly assessed. He should not have been left unsupervised;
5. During resuscitation Harry suffered a prolonged episode of postnatal hypoxia as a result of the failure to secure his airway and achieve effective ventilation;
6. Consultant care should have been called for earlier during the resuscitation;
7. No proper account of the time elapsing during resuscitation was kept.

The prosecution

There were numerous factors involved in the CQC’s decision to prosecute the Trust. A lack of staff, poor training and a bad culture of failing to address known problems all contributed. There were 20 investigations into neonatal deaths within the Trust between September 2012 and April 2017. There were other deaths which weren’t reported or investigated.

The fine

Sentencing was carried out by DJ Barron in the Folkestone Magistrates’ Court. As a summary offence the case had to be heard within the magistrates court. The fine would depend on culpability, seriousness of harm and any mitigating factors.

DJ Barron imposed a fine of £1,100,000 which was reduced by a third for an early guilty plea. He could have gone up to £2,900,000 but commented that he had to be aware that such a fine may impact on future patient care.

The future

At government instigation in February 2020, Dr Bill Kirkup has commenced an independent investigation into almost 200 births which occurred under the care of the Trust since 2009. His report is due in Autumn 2022.

Further details can be found at IIEKMS – Terms Of Reference.

A Kent Police enquiry is also underway and is considering the possibility of a criminal investigation into corporate or gross negligence manslaughter.

Comment

This is, as above, a landmark case. Although there are currently, and have been, many inquiries into maternity care all over the UK, the investigation and outcome of Harry’s death will have the greatest impact on patients and healthcare providers alike, for numerous reasons. It highlights the worrying abyss into which such cases may fall without perseverance on the part of families; Harry’s death was only eventually investigated so thoroughly by virtue of the dogged determination of his parents to find out what happened to him. It is deeply concerning that the Trust did not report Harry’s death to the coroner of its own volition.

The case also sends a powerful message to healthcare providers that the CQC is not afraid of prosecuting where appropriate. It will hopefully act as a positive deterrent and encourage training, retraining, review of practices, review of staffing control and many other aspects of maternity care everywhere. It will hopefully encourage candour and inspire an impetus to investigate any failings by those clinicians and staff directly involved in an incident as well as those who were not.

The scale of the fine highlights just how serious these failings were.

Of course, a balance has to be struck between punishing a Trust which has failed in its duty to a patient by virtue of systemic, operational and individual errors and depriving an already stretched resource of its finances. Such a step may, as the sentencing judge said, have the opposite effect to improving patient care. One would hope however that such cases, prosecutions and sentences will be rare and it is hoped that East Kent in particular has found the investigation, with its devastating revelations and its financial repercussions, of use in improving its maternity care.