Back in May, we blogged about an NHS Trust, East Kent Hospitals University Foundation Trust being found liable for failures of maternity care which led to the tragic death of baby Harry Richford in November 2017.  It the first such prosecution of by the Care Quality Commission (CQC) and was reported as a “landmark decision”.  The Trust had pleaded guilty.

Last week we saw the culmination of that prosecution, with the Trust being fined £761,000.00, including costs and a victim surcharge, at Folkestone Magistrates Court.

The fine could have been as high as £1.1 million but District Judge Barron said:

“I have to have regard to the fact that this isn’t a private company.  This is the NHS providing care across the wider community that isn’t going to be reimbursed by government. And if the fine I impose is too swingeing it will have a direct impact on patient care and that isn’t my aim as a judge.”

The Trust was also given credit in the form of a reduction in the fine for their early guilty plea once the prosecution was laid.

Very briefly, Harry sadly died as a result of  “wholly avoidable”  mistakes by staff at the Queen Elizabeth The Queen Mother Hospital in Margate.  He was delivered by caesarean section but delays led to him suffering a severe lack of oxygen and brain damage.   A coroner had already found that mistakes by the Trust amounted to neglect.  The Trust had apparently also failed to take note of earlier safety warnings, which, had they acted on them, might have saved Harry’s life.

Dr Bill Kirkup is conducting an enquiry into almost 200 maternity cases at the Trust, involving deaths of other mothers and babies left with severe brain damage and police are also considering a criminal investigation.

Harry’s mother Sarah made a statement to the Court in which she said:

“There’s no way I can truly encapsulate the pain upset and anger that I’ve experienced after what happened to Harry at his birth. I never imagined that I would feel so helpless, exhausted and distressed lying on an operating table listening to a room full of panicking people who I was relying on to safely deliver Harry.”

District Judge Justin Barron said the aim of his fine was to “bring it home” to the Trust that it needed to change.  He said:

“It (the Trust) has to put in place practices and procedures to ensure that what happened to Sarah and Harry Richford doesn’t happen to anybody else.”

He went on to find there were “clear system failures” and said:

 “I don’t have any difficulty finding that this is a case of high culpability, the highest category of harm, and it caused the greatest harm imaginable.”

He also commented on the huge efforts the family had had to make to get answers to their questions about how and why Harry died, which we commented on earlier.

He said it was clear lessons had not been learned from reports by the Royal College of Obstetricians when Harry died (though the Trust is now taking action to improve) and that the family had to campaign to get answers.

Niall Dickson, chair of East Kent Hospitals University Foundation Trust apologised unreservedly to Harry’s family for their failure to provide safe care and treatment.

Philip Cave, for the Trust, was asked to read a statement to the court and directly to Harry’s parents and basically admitted the Trust had committed a catalogue of errors.  He said that the family should not have had to campaign to achieve change and that the Trust was determined to improve for “those who use and depend on its services”

We couldn’t agree more.  We DO believe in and trust the NHS and in the main it does a great job. That is why it seems so much worse when something like this happens.

But Trusts have a duty of candour when things go wrong and this should be implemented across the board. It is not for grieving parents, or indeed anyone else injured while under medical care, to have to wring information out of a Trust.  The CQC in 2018 even said  that following an “extensive review, we do not believe there has been a breach in regulation”.

It may seem wrong to take money from the NHS by way of a large fine, but it seemed fairly clear that this Trust knew there were problems and yet not only did they fail to address them, they appeared to try to hope the situation would go away.  It wasn’t going to and didn’t and finally the CQC must have felt that as a last resort, a prosecution had to be brought to ensure the Trust DID learn a lesson.

The Trust will not have deliberately set out to cause harm; that situation is rare in the extreme in the NHS, but harm they did. The real crime was in failing to take steps to recognise the problem and improve.

The fine can’t change the past, but we hope that it can influence the future for the better.

As Harry’s family say;

“Mistakes happen every day……but learning from these errors is vital and what makes hospitals a better and safer place for all…..we are not here because of the failings from one evening.”

As medical negligence lawyers, we know that genuine mistakes happen, but it’s when they turn into negligence, or are ignored that the wrong is caused.

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