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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 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).

The HSIB’s national review of intrapartum stillbirths during the Covid-19 pandemic was published on 15 September 2021. The review was prompted by an increase in referrals of intrapartum stillbirths to HSIB which fitted specific criteria between April and June 2020 (45 compared to 24 in the same period in 2019). The report describes how the pressures and changes as a result of the pandemic may have impacted on the care received.

Coroners and stillbirth

At present, coroners do not have power to investigate stillbirths. 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 calls for the law to be changed.

In Northern Ireland, which has its own legislation, the position is 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 baby that had been capable of being born alive.

Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019

Section 4 of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 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 and following this the Lord Chancellor may make regulations to amend Part 1 of the Coroners and Justice Act 2009 for specified purposes.

Government consultation 2019

In March 2019, the Government launched a consultation on coronial investigations of stillbirths in England and Wales. This was described as a joint undertaking between the Ministry of Justice and the Department of Health and Social Care.

The Government proposes that stillbirths occurring at or after the 37th week of pregnancy should be in scope of an inquest. The stated aims of the consultation proposals were 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 Government said it was not seeking to replace the role of the NHS in investigating stillbirths. Instead, coronial investigations would supplement and support those investigations and ensure that coroners could contribute to learning and play a role in reducing the stillbirth rate.

The consultation closed on 18 June 2019. The Government is still analysing feedback.

In May 2021, the House of Commons Justice Committee recommended that the Ministry of Justice should revive the consultation and publish proposals for reform. The Government response, published in September 2021, said the delay was due to the impact of Covid-19 on work programmes. However, the Government accepted the Committee’s recommendation and said the Department of Health and Social Care and the Ministry of Justice planned to publish a joint response to the 2019 consultation as soon as possible.

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