Psychiatric Injury following baby loss - when will the law catch up?

by Alisha Puri, medical negligence solicitor at Irwin Mitchell

Over 100 charities such as Tommy’s and SANDS  come together to form the Baby Loss Awareness Alliance in aid of Baby Loss Awareness Week and to drive improvements in policy, bereavement care and support for anyone affected by the death of a baby.

Trailblazing campaigns such as the global Wave of Light and the pink and blue ribbon are continuing to break the silence around pregnancy and baby loss.

Eight babies are stillborn in the UK every day. In 2018, one in every 250 pregnancies ended in a stillbirth.  In 2019 there were 2,131 neonatal deaths - babies who tragically die within the first 28 days of life.

Supporting families affected by baby loss

Justine Spencer, a medical negligence partner at Irwin Mitchell is instructed by Helen Brotherton, a mother who tragically delivered her baby, Troy, stillborn. She reported concerns that her son was not moving on two occasions. 

The Isle of Wight NHS Trust said it was “truly sorry for the failings led to Troy’s death.” Helen stated “Having to leave Troy knowing we wouldn’t be able to bring home to start our new lives together is something I don’t think we’ll ever get over.”

Studies highlight impact of losing a child

US studies show that women who had a stillbirth were twice as likely to have depression and the effect had actually increased when they were studied again two years later, showing that stillbirth had a long term effect on mental health.  

Another study of women who had experienced a stillbirth or neonatal death showed that women who had suffered loss were four times more likely to have depression and were seven times more likely to have post-traumatic stress disorder.

Over the last few years and particularly more so with the pandemic, there has been a shift in focus towards promoting wellbeing and mental health. Employers are putting in place flexible working schemes and various resources to support their employees. The government’s “every mind matters” campaign encourages people to look after their mental health. 

But as I look at the ever-growing number of campaigns to highlight the importance of mental wellbeing I can’t help but think - why does the law not give the same recognition?

As a medical negligence solicitor, I speak to mothers and fathers daily who have suffered the loss of their child as a result of poor treatment. It is undoubtedly the most life-changing event to affect families with devastating consequences.

Award of damages following medical negligence need to be less generalised

Medical negligence cases involving psychiatric injury following a negligent stillbirth often fall within a bracket of “moderately severe” and attract damages for pain and suffering. Damages awarded are often moderate, there are other categories and each case is assessed on an individual basis.

However, the debilitating impact that a loss of a child has on day to day life, calls for these brackets to be updated and less generalised.  Factors such as a mother’s journey to conceive that child should also be taken into account.  

No award for compensation will ever make up for the loss that families suffer, but a higher award would go some way in giving parents the time and support they need to get through such a difficult time.

Find out more about Irwin Mitchell's expertise in supporting families affected by baby loss at our dedicated birth injury section.

US studies show that women who had a stillbirth were twice as likely to have depression and the effect had actually increased when they were studied again two years later, showing that stillbirth had a long term effect on mental health.”