Authored By: Sageda El-Sanossi
University of Liverpool
ABSTRACT
Medical negligence in maternity care has raised serious legal and ethical concerns in the United Kingdom, particularly following numerous high profile failing in NHS hospitals. With numerous investigations discovering several preventable deaths, life changing injuries and systemic failures within the healthcare system, deep rooted issues in the standard of care provided to mothers and newborns has been revealed.
This article examines how UK law defines and responds to medical negligence in maternity care, using statutes and key legal principles established in landmark cases such as Bolam and Montgomery. It will analyse whether the current legal system genuinely delivers meaningful redress to grieving mothers and injured newborns. It explores the legal barriers women face when seeking justice, the role of inequality and race in maternal outcomes and whether current legal mechanisms are taking accountability to prevent future harm. It questions whether the current legal system protects the most vulnerable patients in our system, as well as proposing reforms in our legal system.
INTRODUCTION
Medical negligence in maternity care has become a growing concern in the UK, with around 80 investigations conducted within a single year related to maternity failings1. Inquiries into NHS trusts such as Shrewsbury and Telford Trust and East Kent have exposed repeated failings in maternity care. As well as this, they revealed that a significant number of women of colour experienced racism by caregivers, often feeling neglected and disbelieved when expressing their needs and concerns. These failures raise questions as to whether legal accountability is taken and is justice served to those who have suffered.
When substandard care results in stillbirth, brain damage, cerebral palsy and other paralysis, the consequences are life altering and deeply traumatic for families, causing adverse effects on their quality of life and their childs. Beyond personal impact, constant failings undermine the public’s confidence in the healthcare system, causing many women anxiety about what decisions to make to protect themselves and their unborn child’s life. Since 20219 the NHS has spent over £27.4 billion in medical negligence claims 2, funds that could have been invested into patient care and staff training. This has exposed broader systematic issues including understaffing, inadequate communication and institutional cultures that discourage transparency.
These failures represent serious violations of pregnant women’s human rights, particularly their right to freedom from inhumane and degrading treatment, the right to life and the right to privacy highlighted under Article 33, 24and 85under the Human rights Act 1998. Maternity negligence is not only a clinical failure, it’s a legal and moral failure to protect some of the most vulnerable citizens. This highlights the urgent need for legal reform and questions whether financial compensation is adequate for the profound grief and psychological trauma experienced by victims and their families.
This article explores legal framework governing medical negligence in maternity care in the UK using statutes and case law, considering challenges victims face in seeking justice and proposing legal reforms that deliver meaningful justice.
LEGAL FRAMEWORK
In the Uk medical negligence also known as clinical negligence is primarily governed by Tort Law. Under Tort Law medical negligence occurs when a healthcare providers actions or omissions fall below the accepted standards of care breaching their duty, causing death or injury to the patient6.
Under common law, where there’s an established relationship between a doctor and a patient, the doctor has a legal and ethical duty to provide a reasonable standard of care to their patient. The standard for determining a breach in duty of care, has been defined by the ‘Bolam test’. Under Bolam v Frien Hospital Management Committee 19577, a healthcare provider is not negligent if another medical professional within the same profession and position would have acted in the same way. While this protects clinicians, it places too much power in the hands of medical professionals, overlooking patient’s rights. There must be a direct factual and legal link between the medical professional’s action and the death or injury. To establish causation the ‘but for’ test is applied, if the injury would have occurred regardless of the negligence, then the claim will likely fail.
There are various acts of parliament that provide procedural obligations to healthcare providers. The Health and Social Care Act 20128restructures the NHS in the UK, it emphasises the importance of patient’s voice, choice and accountability in order to improve transparency. Additionally, The Duty of Candour introduced by the Health and Social Care Act 2012, requires NHS care providers to be transparent and honest with patients suffering with immense harm, this includes taking preventative measures9. As well as this, The National Health Service Act 200610 imposes a duty on NHS trusts to deliver safe and effective care, promote autonomy and reduce inequalities, as well as continuously improving quality of care. Despite these clear legal foundations, implementation remains ineffective with numerous incidents such as Shrewsbury and Telford Trust and East Kent, reporting failures in taking accountability and disclosing harm honestly.
Maternity negligence violates fundamental rights under The Human Rights Act 1998. This includes Article 2 the right to life, which ensures access to life saving health services including maternity care, this is breached when failures result in preventable maternal or infant deaths. Article 3 freedom from inhumane or degrading treatment, is violated when women are ignored, mistreated and neglected during childbirth. Article 8 the right to private and family life which promotes the right to bodily autonomy and to make informed medical decisions on behalf of themselves and their child.
Such basic human rights form a legal basis for medical negligence claims, allow victims to know what rights they are owed and how to obtain justice.
JUDICIAL DEVELOPMENT AND ITS IMAPCT
The development of medical negligence law in the Uk has been shaped by judicial decisions. Landmark cases such as Bolam and Montgomery have not only set key legal principles but also shifted the balance of power between doctors and patients. Over time, courts have shifted their approach from a differential one prioritising medical professionals’ judgement to a more patient focused approach, centred on honesty and autonomy. These decisions play a critical role in determining how negligence is assessed and applied in practice.
In Bolam v Frien Hospital Management Committee 1957, Mr Bolam underwent a serious and painful procedure without a muscle relaxant or being informed of the risks, consequently he suffered a facial fracture and sued for negligence. Following this, the court created the ‘Bolam test’, this set the standard that medical professional’s opinion is what mattered, and that they are judged by the standards of their peers instead of what the patient wishes. This gives doctors too much power and freedom, allows them to shield each other using the defence of having expert opinion, therefore ignoring patient’s rights. Handing patient autonomy to professional control whilst ignoring patient’s rights in terms of communication and consent, is a clear violation of human rights.
In the landmark case Montgomery v Lancashire Health Borad 201511, a diabetic woman wasn’t informed of the increased risk of shoulder dystocia during vaginal delivery, resulting in her son being born with cerebral palsy. She expressed that had she known of the risks, she would have opted for a caesarean section instead of a natural birth. This led to the Supreme court refining the ‘Bolam test’, stressing that doctors must disclose any risks a reasonable person in the same position as the patient would want to know, as well as informing them of other reasonable alternatives available12. The Montogomery shift, established a patient centred test for informed consent, reinforcing the principle of autonomy and shared decision making. This ruling is significantly important in maternity cases, where pregnant women must make high stake decisions about birth plans and interventions during emotionally and physically exhausting periods. The court highlighted that any information given must be tailored to each individual case, ultimately giving women the freedom to make meaningful choices that impact them and their unborn child.
Despite clear legal principles in place for medical professionals to follow, there is a growing concern that they do not consistently apply these standards in practice. Numerous maternity reports have shown repeated failures to provide adequate care to vulnerable women, in return placing them in a detrimental position disregarding the suffering they have caused them and their families. This emphasises the laws inability to ensure standards are consistently applied in practice, instead assuming that setting legal principles is enough for medical professionals to adhere to. Whilst the law has evolved in some ways, it overlooks the outdated structure and institutional barriers that prevent effective implementation. Consequently, the law neglects the struggles vulnerable patients experience when challenging breaches effectively. This calls into question whether the law is fit for purpose in preventing harm and upholding patient rights or whether it requires further reform.
SYSTEMATIC FAILURES IN MATERNITY CARE
The law plays a crucial role in public safety by establishing rules, procedures and consequences for actions that threaten the wellbeing and safety of the public. However, the law doesn’t seem to uphold its obligations in maternity negligence cases. This is evident in the repeated failures in maternity care across the Uk, highlighting the systemic issues that the law has failed to address.
The Ockenden Review conducted by Donna Ockenden into Shrewsbury and Telford Trust13, found that failings into maternity care have contributed to 200 babies and 9 mother’s deaths, as well as leaving other infants with life changing injuries14. This reflects the trauma grieving mothers suffered having been blamed for their own child’s deaths, and the deeply distressing psychological harm families are left to deal with. The review into these devastating deaths exposed the appalling truth, stating that many children wouldn’t have suffered and may still be alive had they received proper care they deserved, had they had their human right provided. These failings often stemmed from problems such as poor communication, pressure to have a natural birth, understaffing and institutional reluctance to acknowledge mistakes.
This isn’t a one incident of negligence, the NHS maternity service failed to investigate, failed to learn, failed to improve and therefore failed to safeguard mothers and their babies. The sheer scale and duration of harm caused, suggests that the legal system does not function as an effective deterrent or as an enforcement mechanism. This is not only the failure of the healthcare system but a deeper failure of legal accountability where rights exist in theory but are not practiced. This implies that legal standards such as Montogomery rely heavily on the assumption that medical professionals will voluntarily apply these obligations. However, investigations have found evidence of cover ups, delays in disclosing harm and resistance to admitting fault, suggesting statutory compliance without oversight are ignored in practice15. Therefore, as there are no proactive legal enforcement mechanisms to monitor implementations, the law functions as a guideline rather than as a safeguard, particularly for those who are not aware of their rights.
DISPROPORTIONATE IMPACT ON WOMEN OF COLOUR
An alarming shortcoming in the current legal and medical framework is its failure to address the racial disparities in maternity care outcomes. Studies have shown that black women are four times more likely to die or experience serve complications including stillbirths and neonatal morality during or after pregnancy than white women. For every 1000 deliveries by black women there were 2.3 investigations compared with 1.3 for white women16. This stems from the systemic racism within the health care system, impacting the quality and safety of care received. This is evident in the case of East Kent, where reports revealed unprofessional behaviour such as bullying, discrimination and a culture of blame. Women of colour were dismissed, disbelieved and neglected when raising their concerns, causing avoidable harm to several mothers and their babies17.
A black woman who is neglected during labour may experience harm due to racial bias however, the law will treat her case no differently than anyone else’s. The law does not provide adequate tools to effectively address or recognise this inequality. Tort law deals with such cases by focusing on individual cases, meaning that systematic discrimination is often invisible within legal claims. Even though The Human Rights Act 1998 offers protection under Article 14 prohibition of recrimination18 and Article 2 right to life, this isn’t upheld in within maternity care. Therefore, the law remains race neutral in theory it is blind to the racial disparities in practice, failing to consider how discrimination results in harm and undermines accesses to justice.
The individual nature of negligence law does little to address systematic or cultural failures in maternity care. Unless the law evolves to recognise and address such racial disparities, women will continue to face inequal treatment not only in clinical setting but in their ability to seek justice. This requires reform for a more inclusive legal approach that actively considers racial bias as a factor in maternity negligence.
THE LIMITS OF COMPENSATION AS A REMEDY
While financial compensation is the most common remedy in medical negligence cases, its adequacy in maternity cases is deeply insufficient. Whilst compensation assists with future medical treatment, physical adjustments needed and helps reduce financial burden placed on families, it doesn’t begin to ease the profound trauma, grief and loss experienced by families. The harm caused is permanent, the physical and psychological pain will remain with victims forever. Families endure stillbirths, avoidable deaths and lifelong injuries, no sum of money can amount to closure or justice for such catastrophic events. Furthermore, the nature of litigation can intensify psychological harm, forcing families to relive traumatic events. This raises questions about whether financial compensation alone is enough as a form of redress in cases deeply rooted in emotional harm.
COMPARATIVE MODELS AND CASE FOR REFORM
This article has examined the under addressed issues and challenges women go through in maternity negligence, emphasing the catastrophic impact the victims and their loved ones go through. This has revealed the laws reactive nature, its reliance on individual litigation and its failure to address systematic issues, highlighting the desperate need for legal reform. Reform must move beyond theory and tackle the systemic and social dimensions of negligence if justice is to be meaningful for all mothers and families. Other jurisdiction including New Zealand and Scandinavian countries are recognised for their low maternity morality rates and support given to victim in accessing justice. This is a system the Uk should adopt to prevent the public from losing even more trust in the justice and healthcare system than they already have.
Legal claims are a lengthy and expensive process, some victims will struggle to obtain legal aid or legal advice particularly women from low income or marginalised backgrounds. This places an enormous burden on those who are already suffering trauma and creates a system where only a fraction of those harmed receive recognition or compensation. For 30 years New Zealand has addressed medical negligence cases through a no-fault compensation system under the Accident Compensation Corporation19. This means patients who suffer harm caused by medical malpractice are entitled to compensation without needing to prove fault and go through traumatic court proceedings. This builds a wide learning system from medical errors and reduces the burden victims go through to uncover the truth and defend themselves. In contrast to the UK’s fault-based system, which discourages transparency, making justice harder to obtain.
In Scandinavian countries like Finland and Switzerland also operate on a no-fault system under the Patient Injury Act 198620, this allows for early intervention, patient advocacy and institutional reform based on the gathered reports rather than waiting for lawsuits to trigger change. This reduces antipathy between doctors and patients, encourages cooperation and allows for disparities to not go unnoticed 21. Additionally, it doesn’t place those unable to obtain legal aid in financial burden and avoids them having to endure complicated legal proceedings.
The Uk’s current legal framework could be improved by adopting a no-fault system. It would address the inequalities within institutions and gives patients closure and support in achieving meaningful justice. Additionally, it would encourage legal accountability for institutional failure, deterring repeated failings in maternity care.
CONCLUSION
Medical negligence in maternity care is not only a clinical issue, it’s a serious legal and moral concern. Despite the existence of legal principles and statutory obligations, repeated failings continue to occur across the Uk. This raises serious questions about the effectiveness, accessibility and mechanisms in place to protect and ensure accountability in maternity care. This article has explored how legal frameworks operate in practice and their inability to achieve their objective without oversight. It has presented real evidence of systematic failings such as East Kent and Shrewsbury and Telford Trust, showing laws inadequacy to recognise and address inequalities within the healthcare system. Findings have shown that the law as it is lacks preventative measures for future harm and its barriers to access to justice. Considering other jurisdictions approach in medical negligence cases, this article has suggested reform proposals including adopting a similar no-fault system and the need for alternative methods of compensation beyond financial awards. Due to scale of harm already caused, meaningful reform is essential to protect vulnerable individuals and uphold their basic human rights, to save future families from experiencing similar distress.
References:
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4 Human Rights Act 1998, s2
5 Human Rights Act 1998, s8
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8 The Health and Social Care Act 2012 c7
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11 Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430
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