A stillbirth is a tragedy which has a profound effect upon bereaved families.

In England and Wales rates of stillbirth are the lowest on record but they are still higher than some other comparable countries, which have succeeded in bringing rates down at a higher rate.

Over the years there have been calls from bereaved parents, charities and others for a more transparent and independent process for determining the causes of, and learning from, stillbirths.

Currently the causes of stillbirth are reviewed via investigations undertaken or commissioned by local NHS providers and/or commissioners of care. Since April 2018, the Healthcare Safety Investigation Branch (HSIB) has also begun to investigate certain intrapartum stillbirths. HSIB is operationally independent of the NHS and funded by the Department for Health and Social Care (DHSC) via NHS Improvement.

Whilst parents are made aware of and consulted during these reviews and will receive a report of the outcome, there has been criticism that the reviews are insufficiently independent. Parents feel they have not always been listened to, or that they have not had access to all the facts. Some parents are concerned that the lessons revealed in these reviews are not always put into practice.

Currently in England and Wales, coroners have no jurisdiction to investigate deaths where a baby did not have life independent of the mother. Some of those calling for change have identified coronial investigations as the way to deliver an improved process, while the Chief Coroner for England and Wales has repeated his call for proper consideration of the question whether or not to give coroners powers to investigate stillbirths.

In response to this the Ministry of Justice (MOJ) published a consultation paper in which they proposed a system whereby stillbirth cases are the subject of investigation that is wholly independent of the NHS and which delivers trusted accounts to parents as to why their baby was stillborn and to contribute to system-wide learning and improvement for all maternity service providers.

The consultation process for stillbirths to be investigated by a coroner was prepared jointly by the Ministry of Justice and the Department for Health and Social Care and was opened on 26 March 2019 and closes on 16 June 2019.

The MOJ have called for views on the proposals from a wide range of people and organisations including bereaved parents, the organisations that support them or that provide advice to pregnant women, researchers and health professionals and providers as well as coroners.

If there is support then it is likely that there will be a power for the Lord Chancellor to make provision, through secondary legislation, for stillbirth investigations to be carried out by coroners. This would result in independent judicial scrutiny of a stillbirth.

The objectives underpinning the proposals in this consultation are listed as being:

  1. to provide an independent assessment of the facts and causes of the stillbirth being investigated
  2. to provide for transparent investigations which give parents an opportunity to express their views and keep them engaged and informed throughout the process
  3. to contribute to learning about the causes of stillbirths, in order to assist the wider efforts being made in the health system to improve maternity outcomes

A stillbirth is devastating for the parents and both parents can often suffer significant psychiatric injury requiring treatment as a result. It is particularly difficult for a father to recover damages for psychological injury. His claim is as a secondary victim and the law in relation to secondary victims is complex. A psychiatric report is invariably required. Very often the bereaved father finds it difficult to acknowledge or deal with their own trauma whilst trying to be strong for the mother and the family and very often decides not to claim.

A transparent investigatory process that gives parents an opportunity to hear all the evidence of the facts that led to the unexpected stillbirth of their baby will hopefully go some way to help the parents come to terms with what happened and to know that lessons can be learned for the future.