Landmark court order requires HSIB to disclose confidential interviews to aid post-natal injury claim

In an ongoing post-natal injury case, Paul McNeil and Henry Kirwan won a landmark court order requiring HSIB to disclose transcripts of interviews with midwives involved in the care.

This is the first order of its kind for non-party disclosure against the Healthcare Safety Investigation Branch, which was made to ensure a fair trial. Previously such disclosure had only been made on a confidential basis to a coroner. The judge's decision may open the door to similar orders in the future.

The child, now 3, was born at the Sheffield Teaching Hospitals NHS Trust in 2020. He collapsed while on his mother's breast an hour after he had been born in a healthy condition. He suffered irreversible neurological damage due to oxygen deprivation, which resulted in severe cerebral palsy.

The negligence claim alleges that the parents asked the midwives to check the newborn several times over concerns that he had stopped moving. The midwives in any event should have seen that he was poorly positioned and should have repositioned him before he became anoxic. The claim is to recover damages to fund the child's extensive and lifelong 24/7 care needs.

The body that was previously HSIB, an independent body funded by the Department of Health and Social Care and  hosted by NHS England, had a remit is to investigate patient safety concerns in England so as to improve NHS care at a national level. Accordingly a few weeks after the incident, it conducted interviews with the mother and the midwives present. On its website, it stated that 'Information shared with us is confidential and protected by law'.

In its initial defence, the hospital denied liability based on the midwives' evidence that the parents did not raise any concerns about the condition of the baby. The key midwife claimed to have a limited recollection of the incident.

The Trust then filed an amended defence citing more detail about the relevant events, which can only have been made following a change in the factual accounts provided by the midwives. 

HSIB refused to share the' interview transcripts stating that they constituted personal data and, without the necessary consent, were protected from disclosure. HSIB had originally indicated it would re-consider its stance if there was a court order in place.  

Fieldfisher issued an application against the Trust (for specific disclosure) and HSIB (for non-party disclosure), arguing that the transcripts were likely the most contemporary (and therefore potentially reliable) accounts available. Disclosure was necessary for a fair trial since it may depend on whose recollection of events is more likely to be correct.

The Trust and HSIB strenuously defended the application and argued that the Court had no power to order disclosure of material that was outside its 'control'.  

HSIB argued that an order to disclose would compromise the 'safe space' necessary for candid interviews and that clinicians in future would be deterred from cooperating with HSIB.

These arguments contravened the general duty of candour and HSIB's own guidance to interviewees which stated that all material could be disclosed in subsequent court proceedings. It also argued that balancing public interest should favour HSIB in its investigation and prevention of medial accidents role.

The judge agreed with the Trust that the transcripts were not in its control as it was required to obtain the consent of the midwives. However, he found against HSIB and ordered it to disclose the transcripts within 21 days.

The judge disagreed that the "safe space" would be compromised He noted that the Secretary of State's own Directions at the inception of HSIB which provided that disclosure of interviews would be permissible in cases where there was legal compulsion, i.e. a court order. There had therefore never been blanket confidentiality for clinicians giving interviews.

The Judge was clear that any claimant seeking such  an order faced a very high bar for non-party disclosure form the HSIB. Only material that goes to the heart of the issues in dispute will be disclosable He saw no obvious issue in HSIB documents being used in future litigation in principle.

Meanwhile, over the past year, HSIB has reinvented itself as HSSIB - the Healthcare Services Safety Investigations Body - and no longer conducts maternity investigations which have moved into the Care Quality Commission to become the Maternity and Newborn Safety Investigation (MSNI) body.

While the ruling does apply to MNSI, it does not apply to HSSIB investigation evidence which is collected and protected by the Health and Care Act 2022, HSSIB is now a statutory arm’s length body and is no longer hosted by NHSE.

Contact us

For further information about midwife negligence claims or cerebral palsy claims please call Paul McNeil on 0330 460 6804 or email paul.mcneil@fieldfisher.com or or call Henry Kirwan on 0330 460 6766 or email henry.kirwan@fieldfisher.com.

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