Baby Loss: Coroners

Tim Loughton Excerpts

Tuesday 19th March 2024 Westminster Hall

[Julie Elliott (in the Chair)]

I will call Tim Loughton to move the motion and then call the Minister to respond. As is the convention for 30-minute debates, there will not be an opportunity for the Member in charge to wind up.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I beg to move,

That this House has considered baby loss and the role of coroners.

I am afraid you have a double dose of me this afternoon, Ms Elliott. That is obviously far too much for the people in the Public Gallery, who have made a surge for the exits.

This short debate will be focused on my Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, which has been going for quite a while now and remains unfulfilled in one part; that is the purpose of the debate. My Act started in the private Members’ Bill ballot in autumn 2017. It had its Second Reading on 2 February 2018. It passed all its parliamentary stages in February 2019 and passed into law in May 2019, almost five years ago. There were four parts to this historically quite ambitious and complicated private Member’s Bill.

The first part was that the names and details of mothers should appear on marriage certificates, now an electronic record. That came into being in May 2021, since when I have received many grateful thanks from mothers or the husbands of late mothers whose names could be now recorded on marriage records.

The second part was the extension of civil partnerships to opposite-sex couples, which came in on 31 December 2019 and became regulation on the last day of Parliament before the election in 2019. Since then, more than 25,000 happy couples have availed themselves of that facility.

The third part was for the Secretary of State to produce a report on the registration of pregnancy loss. A pregnancy loss committee was set up, and I sat on it. Within the last couple of weeks, baby loss certificates have become a thing and again have gone down very well.

[Jim Shannon (Strangford) (DUP)]

Will the hon. Gentleman give way?

[Tim Loughton]

So early? Of course—how could I resist?

[Jim Shannon]

I congratulate the hon. Gentleman on the four provisions that he brought forward, particularly the pregnancy loss one. It is something that probably all of us have to come to terms with in our family, and it is difficult. It is always a difficult topic to discuss, but the hon. Gentleman is right to bring it forward. As families, we can all feel for those who have lost babies during pregnancy. We feel for our partners, our wives, our mothers, our sisters, and all those who have lost as well. I commend the hon. Gentleman for bringing this forward.

--- Later in debate ---

[Tim Loughton]

I am grateful to the hon. Gentleman, who takes a great interest in these matters. This legislation, of which I am very proud, is designed to make a very painful situation for many parents who have lost babies that much more bearable, in so far as is possible.

I hope that there are parents who have benefited from that part of the Act, but there are still parents waiting to benefit, because the fourth part has yet to become a reality. That was the section of my Act that made a one-line amendment to the Coroners and Justice Act 2009 empowering coroners, if they see fit, to investigate stillbirths in certain cases. It also requires the Secretary of State to prepare reports, and yet we have not got a report. All we have is a factual account of the consultation, which opened on 26 March 2019 and closed on 18 June 2019. Its results were reported, after years of nagging from me, on 6 December 2023, barely three months ago. It took four and a half years for the Government to publish the results of that consultation, which is quite extraordinary.

I was given excuses all the way through. I have had meetings with Ministers, but part of the problem is that this is a joint responsibility between the Ministry of Justice and the Department of Health and Social Care. I feel sorry for my hon. Friend the Minister. He is not the normal Minister, but I know he will give me helpful information at the end of this debate. The measure had overwhelming support in reports from the Justice Committee and the Health and Social Care Committee, the latter when it was chaired by the now Chancellor, who was very supportive. So why is it taking so long? We were given excuses by the Health Minister—it was delayed because of coronavirus and then delayed because of changes of Ministers. All that has happened. But we have had some consistency among Ministers and we are well past covid, thank goodness. Why is it a problem that still needs to be addressed and why on earth has it taken so long?

It is a problem because, every day, 13 babies are stillborn or die shortly after birth. The Government have done much to increase safety in maternity departments, but it is still a problem. We still have a relatively high rate of stillbirths compared with other European countries. Even though it has come down by 19.3% since 2010, it remains a big problem and a source of great grief among parents, who go through the trauma of having carried a child, in some cases to term, only for that child to be born dead.

I will briefly revisit the reasons why this part of my Bill was necessary. In my speech back in those heady days when it was first proposed in 2018—I was very hopeful at that stage—I said then that I knew that, with my last measure in the Bill, we were pushing at an open door, as the Health Secretary had signalled his support for it at the Dispatch Box during a statement on stillbirths. I said that there appeared to be an anomaly in the law where coroners in England have the power to investigate any unexplained death of any human unless it is a stillbirth. That is because a baby who dies during delivery is not legally considered to have lived; if a baby has not lived, it has not died, and coroners can investigate deaths only where there is a body of a deceased person.

However, one in three stillbirths are of healthy babies who die at term. In some cases deaths occur because of mismanaged deliveries—there have been a number of high-profile cases involving clusters of such deaths well above the national average. That is why I was urged by my own coroner, Penny Schofield in West Sussex, the Coroners’ Society and coroners around the country, as well as many birth-oriented charities, to bring in the measure.

Those reasons have, if anything, got even stronger because we have had a series of scandals in maternity departments over the last few years. We had the Ockenden inquiry into maternity care in Nottingham, where 1,266 families contacted the review teams directly to express concerns about the deaths of their children. Then we had the scandal around the Shrewsbury and Telford Hospital NHS Trust, where the deaths of more than 200 babies and nine mothers were investigated. There was the East Kent Hospitals University NHS Foundation Trust review, and some years ago there was the Morecambe Bay review of the unnecessary deaths of 11 babies and one mother. And only this week, we had the report in the press that one in seven maternity units has closed in the past decade, sparking warnings of a mounting crisis in healthcare for women, along with estimates of a shortage of midwives across England. Consequently, this issue is as live as ever, and it is as important as ever to get it right. What we absolutely need is trusted, independent scrutiny of why certain stillbirths have happened.

If I look at what the Government produced in their response—well, no, they have not produced their response; I will correct myself. If I look at what the Government produced in their factual report in publishing the results of the consultation back in December, I see that the ministerial foreword says that

“we are working to improve the information available to families regarding the investigative processes that may take place following a stillbirth.”

Hear, hear! It continues:

“It is essential that we get this right, given the emotional impact that losing a baby has on parents and others involved.”

That is absolutely right. However, it also says:

“Respondents both supported and were against proposals that coroners should have a role in stillbirth investigations”,

which ignores the fact that respondents overwhelmingly supported the proposals, and I will cite the figures that prove that.

The Government gave a factual summary of the consultation and promised further information and Government action later, with no timescale, which is the issue that I would really like the Minister to address. In addition, however, the way that the report was skewed meant that it dwelt too much on reasons why a change in the law was not necessary. Excuses were given, such as that

“the mandatory nature of the investigations could be distressing and intrusive”.

We are only looking to give the coroner the power to pick up a small number of cases—not every stillbirth that happens, but those where there are serious questions to be asked. Another reason was about

“the loss of parental control over whether a post-mortem examination would take place.”

It is important that the coroner makes the final decision on whether to investigate, because there are suspicions about some stillbirths—mostly those caused by the domestic violence of a partner, who effectively wants to hush things up.

Other reasons cited were the “potential for duplication” and the “impact on resources” for coroners and local authorities. This should not be a cost-based measure. Another reason was

“that there would be a significant increase in demand on paediatric pathology”,

but again, no figures are given for how many stillbirths would actually be investigated. We are talking here about dozens and not hundreds or thousands. Finally, there are extraordinary excuses, such as:

“Coroners are not best placed to identify and disseminate clinical learning”.

Well, they investigate an awful lot of adult deaths and are able to identify and disseminate clinical learning in relation to those cases; why should the same not be true of baby deaths? The Government seem to be talking down the ability and efficacy of coroners, which is slightly worrying.

Back in 2017, after I had published my Bill, the Government announced their intention to consider whether and how coroners could carry out stillbirth investigations at 37 weeks’ gestation and over. I agree with that; I think it should apply to full term stillbirths. Then, the Government produced their consultation. I will skip ahead to the results of that consultation, in particular some quotes that were supportive of coroners being involved. A bereaved family member said:

“I feel it is important for parents to feel completely confident that the investigation is run by someone completely unbiased and impartial, especially when there is concern there may have been substandard care.”

I agree, and in anybody’s judgment that person is the coroner. The Government gave the excuse in their report that

“coroners were not best placed to make these determinations and would need to rely on medical professionals”,

But why would that be any different from a coroner’s role in investigating adult deaths over which there are question marks?

I have to say that the result of this consultation was pretty definitive. I will get to the actual figures. The number of people who responded to the consultation was 322. Of those people, 244, or 75.8%, replied in the affirmative to the question:

“Do you think coroners should have a role in investigating stillbirths?”

By a factor of three to one, people think that coroners being involved would be a good measure.

In answer to the question,

“Do you agree with the proposal about ascertaining how it was that the baby was not born alive?”,

86.7% of respondents said that coroners have a role to play and that there were questions that need to be asked.

In answer to the question,

“Do you agree that, as part of the findings, coroners should identify learning points and issue recommendations to the persons and bodies they consider relevant?”,

85.8% of people responded yes.

The fourth question that I would like to highlight is:

“Do you agree that no consent or permission from the bereaved parents, or anyone else, should be required for coronial investigation?”

That is a more contentious issue but, still, 63.9%—almost two thirds—said that they should be mandatory, even if the parents did not agree. That is important for the reasons I have just given.

The final consultation question that I want to flag up is:

“Do you agree with the proposal to investigate only term and full-term stillbirths?”

The response was 70.6% no. People were saying that the scope of coroners to investigate stillbirths should be even wider and begin earlier than being proposed. By any measure, this was a consultation that overwhelmingly backed the measures in my Bill and the changes that have been supported so widely in this House, in the coroners’ field and in the medical field by many people.

Finally, this is my question to the Minister: how much longer do we have to wait? I have been in this place for quite a long time, and I have never seen such a wide gap between legislation requiring consultation coming in and that being published, let alone the Government deciding what to act on. In a letter to me accompanying the publication of the consultation, the Under-Secretary of State for Health and Social Care, my hon. Friend the Member for Lewes (Maria Caulfield), said:

“Officials are also exploring mechanisms for improving existing processes to further address the aims of the coroners’ proposal. A further statement will be issued in due course.”

That chilling phrase, “in due course”, is one we hear so often from Ministers who have not got a handle on when they will do something that they know needs to be done. My question to the poor Minister who has been dragged here today, for whom I have every sympathy, is: please can we get on with this? There is no excuse for not doing so. The consultation has taken place. Everyone has said, “Yes, this is a pretty good idea.” The legislation also had overwhelming and unanimous support from both Houses of Parliament when it went through all those years ago.

Can we please now have a clear timetable for when we will get the Government’s formal response? I hope the response will be, “Yes, we agree, and we will now get on with it.” If it is not, all the people interested in this will urgently be owed an explanation of why this should not go forward in the way that has been suggested, given that the Government’s own consultation has shown such overwhelming support for it.

[The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)]

It is a pleasure to serve under your chairmanship, Ms Elliott. I thank my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) for securing this debate. I pay tribute to his work in shining a light on the important but complex and extremely sensitive issue of stillbirth, which, despite the experience and incredible dedication of our medical professionals, continues to touch the lives of too many families.

Bereavement is never easy, but to lose a child through stillbirth is a tragedy. The Government are committed to supporting parents through such a difficult experience and ensuring that they have access to the support they need. More than that, one of our highest priorities is to reduce the number of stillbirths and other adverse maternity outcomes. To help to achieve that, we are committed to ensuring that, wherever possible, lessons are learned and care is improved to prevent avoidable stillbirths in future.

To put that aim into context, the Government set the national maternity safety ambition to halve the 2010 rates of stillbirths, neonatal and maternity deaths, and brain injuries occurring during or soon after birth, by 2025. Also by 2025, we want to reduce the pre-term birth rate from 8% to 6%. We are making good progress, but we recognise that more still needs to be done to achieve that ambition. Since 2010, the stillbirth rate has reduced by 23% and the neonatal maternity rate of babies born after 24 weeks’ gestation has reduced by 30%.

Although we can demonstrate clear progress, it is vital that we continue to learn from the tragedy of every stillbirth. Concerns about the consistency and independence of those investigations have given rise to the calls for a more transparent and independent process, for which my hon. Friend continues to advocate so consistently.

The coroner, as an independent judge, investigates deaths for which, among other things, the cause is unknown, so it is easy to understand the proposal that their role should be extended to include the investigation of stillbirths. However, I want to take a moment here to emphasise an important point: at present, coroners do not have jurisdiction to investigate a stillbirth because, sadly, as my hon. Friend said in his speech, where there has not been an independent life, there has not legally been a death. A child born who is showing signs of life has had an independent life, so that child’s death must be investigated if the coroner’s jurisdiction is engaged. When there is doubt about whether a child was born alive, that is a matter for the coroner to determine, and it is open to anyone, including the bereaved family, to report a case to the coroner if they believe there is a need for such an investigation.

In 2016, the Government committed to consult on whether, and if so how, the coronial investigation of stillbirths should be introduced. The commitment was made as part of a fresh maternity safety strategy. Since then, a range of important safety initiatives have been rolled out, including a perinatal mortality review tool, which is now available in every maternity service in the UK. The tool enables trusts to review all stillbirths and neonatal deaths by setting out a set of questions and principles to guide trusts through a standardised review process. The tool’s secondary aim is to ensure local and national learning to improve care and ultimately prevent future baby deaths. Collation and analysis of the data from the tool and the production of annual national reports on the key themes arising from the reviews and recommendations are intended to improve safe maternity care and safe outcomes for babies.

In addition, the maternity and newborn safety investigations programme, established in 2018 and now hosted independently by the Care Quality Commission, provides independent, standardised and family-focused investigations for families, which also provide learning to the health system. Alongside those initiatives, the consultation on coronial investigation was taken forward in 2019, again as my hon. Friend said. We are extremely grateful to everyone who submitted one of the 334 responses to the consultation document, to the 63 people who attended stakeholder workshops and, in particular, to those respondents who shared their personal experience of the pain of stillbirth.

The findings of the consultation were complex, as my hon. Friend said. The majority of respondents were supportive of the proposal for coroners to have a role in investigating stillbirths, but many did not agree with the proposals for how that should be implemented. Some were concerned that bereaved parents would not be able to withhold consent to the investigation or any associated post-mortem examination, that the investigation could be distressing and intrusive, that the length of the investigation could delay closure for the bereaved family, that the process might not fulfil the parents’ expectation of finding answers, or that they could feel like they were being blamed.

There were also significant policy and practical concerns, including the potential for duplication, friction and confusion between investigations by the coroner, the maternity and newborn safety investigations programme and the trust or health board, and the potential impact of that on clinicians’ behaviour. There was also a concern that the safety initiatives introduced in 2018 would achieve the same policy objectives as a coronial investigation in any event.

[Tim Loughton]

I am grateful to the Minister; I understand the points that he is making and I appreciate his points about the distress that it may cause to parents, and about blame and everything like that. Whether the child was stillborn or lived for a couple of minutes makes no difference to that potential distress. However, in the latter case, the coroner would have the power to investigate, which could cause the same distress to the parents as doing so could the child had been stillborn. Why is there that distinction?

[Gareth Bacon]

I thank my hon. Friend for his points; I am reflecting the points made in the consultation. His point is well landed, and officials and my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) will have noted the case that he has just made.

In addition, there were concerns about the resource impact on the NHS and the locally funded coroner services. Crucially, there would be a significant increase in demand on already stretched paediatric pathology services, with a significant lead-in time to train new resource. Nevertheless, I note the comments that my hon. Friend the Member for East Worthing and Shoreham made in his speech.

In any event, some respondents felt that coroners would not be best placed to identify and disseminate clinical learning points at a regional and national level. Although many acknowledged that coroners could deliver investigations into stillbirths, there was no consensus on precisely how they would do so and some strong opposition to the specific proposals that we put forward.

Given the importance and the sensitivity of the issue, it is imperative that we get the response right. That means carefully considering the issues identified by the consultation and working through the complex questions that they raise. Work to publish a response was paused during the pandemic. Again, as my hon. Friend said, and as I have explained, the landscape of maternity investigations has changed significantly. One of the key questions that we are considering is whether the current maternity safety initiatives are already achieving, or have the potential to achieve, the overarching objective without the need for coroner investigations.

While the Government were developing and publishing their consultation proposals, Parliament passed the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, which my hon. Friend introduced. As he has explained, section 4 places a duty on the Secretary of State to make arrangements for the preparation and publication of a report on whether, and if so how, coroners could investigate stillbirths. The Act also provides a power for the Lord Chancellor to make provision for coronial stillbirth investigations through secondary legislation if, following the publication of the report, that is considered appropriate. The fact that those provisions are on the statute book is a testament to my hon. Friend’s commitment to the issue, and I can of course understand his frustration that it has not yet been resolved, which he has eloquently expressed today and on other occasions.

As I have said, we have to get this right. To that end, in December the Ministry of Justice and the Department of Health and Social Care jointly published a factual summary of the responses to the 2019 consultation. I have set out the key findings this afternoon, and the two Departments continue to work through their complex implications.

As an immediate next step, my hon. Friend the Member for Finchley and Golders Green (Mike Freer)—he has now joined us—on behalf of the Ministry of Justice, and my hon. Friend the Member for Lewes (Maria Caulfield), on behalf of the Department of Health and Social Care, have told me that they would be happy to meet my hon. Friend the Member for East Worthing and Shoreham to share the latest thinking and discuss possible ways forward on the outstanding issues. I can confirm that by the summer recess, we will make a further statement that sets out the Government’s position on this policy.

To conclude, let me reiterate my thanks to my hon. Friend for the opportunity to respond to this important debate, as well as my thanks to all others in attendance and to all those who have made some very valuable contributions to this issue along the way.

Question put and agreed to.