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This briefing paper deals with the position in England and Wales except where stated otherwise.

Current investigation of stillbirth in England and Wales

All unexpected or avoidable deaths, including those of mothers or babies, which may have been the result of healthcare failings should currently be investigated as serious incidents, under NHS England and NHS Wales national frameworks.

The Department of Health and Social Care and the Welsh and Scottish Governments have also jointly commissioned a standard Perinatal Mortality Review Tool, to assist maternity and neonatal units in investigating all stillbirths and perinatal deaths.

Following a phased national roll out, in England all term stillbirths where the baby dies during labour or birth are investigated by the Health Safety Investigation Branch (HSIB).

Coroners and stillbirth

At present coroners do not have power to investigate stillbirth. There has to have been an independent life before the coroner has jurisdiction to investigate a subsequent death. The definition of stillbirth is based on there not having been an independent life, meaning that the coroner does not have jurisdiction to investigate.

There have been a number of calls for the law to be changed, including by Sands, the stillbirth and neonatal death charity, and in Parliamentary debate.

In Northern Ireland, which has its own legislation, the position is now different. In 2013, in a landmark decision, the Northern Ireland Court of Appeal held that coroners do have jurisdiction to carry out an inquest on a child that had been capable of being born alive.

Government announcement about independent investigations

On 28 November 2017, the then Health Secretary, Jeremy Hunt, made a statement to the House on the Government’s new strategy to improve safety in NHS maternity services. This included an announcement that from April 2018, the Healthcare Safety Investigation Branch (HSIB) would investigate every case of a stillbirth, neonatal death, suspected brain injury or maternal death notified to the Royal College of Obstetricians and Gynaecologists (RCOG) Every Baby Counts programme, amounting to around 1,000 incidents per year. Investigations began in the South region of England in April 2018, with full national roll‑out by March 2019.

Jeremy Hunt also said that he would work with the Ministry of Justice “to look closely into enabling, for the first time, full-term stillbirths to be covered by coronial law, giving due consideration to the impact on the devolved Administration in Wales”.

Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019

Tim Loughton (Conservative) came fifth in the Private Members’ Bill ballot which took place in June 2017. In July 2017, he introduced the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill 2017-19 (the Bill).   The Government supported the Bill (as amended during its progress through Parliament). The Bill received Royal Assent on 26 March 2019 and is now the Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019 (the 2019 Act).

Among other things, the 2019 Act makes provision about the investigation of stillbirths. Section 4 requires the Secretary of State to “make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to enable or require coroners to investigate stillbirths”. The Secretary of State must publish the report.

Following publication of the report, the Lord Chancellor may make regulations to amend Part 1 of the Coroners and Justice Act 2009 (the 2009 Act) for specified purposes.

The regulations must be made within five years of the date on which the report is published. Any statutory instrument that contains (with or without other provision) regulations that amend, repeal or revoke any provision of primary legislation is subject to the affirmative resolution procedure, requiring the approval of both Houses of Parliament to become law.

Government consultation

In a written Ministerial statement on 26 March 2019, junior Justice Minister, Edward Argar, announced the publication of a consultation on introducing coronial investigation of stillbirths in England and Wales. He said that the consultation was a joint undertaking between the Ministry of Justice and the Department of Health and Social Care and delivered the Government’s commitment, made in November 2017, to consider enabling coroners to investigate stillbirths.

The Government proposes that stillbirths that occur at or after the 37th week of pregnancy should be in scope of an inquest

Edward Argar said that the consultation document took account of the views expressed by members of both Houses during the debates on the Bill which is now the Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019.

The Consultation on coronial investigations of stillbirths closes on 18 June 2019.

The Government is consulting on a number of proposals which aim to:

  • bring greater independence to the way stillbirths are investigated
  • ensure transparency and enhance the involvement of bereaved parents in stillbirth investigation processes, including in the development of recommendations aimed at improving maternity care
  • effectively disseminate learning from investigations across the health system to help prevent future avoidable stillbirths.

The consultation paper states that the Government is not seeking to replace the role of the NHS in investigating stillbirths, but rather that coronial investigations would supplement and support those investigations and ensure that coroners could contribute to the learning and play a role in reducing the stillbirth rate.

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