Legal solutions to domestic violence: mandatory reporting

In response to high rates of family and domestic violence in Northern Territory, it became the only Australian legal jurisdiction to introduce mandatory reporting laws.

Since March 2009, the Domestic and Family Violence Act requires that every adult in Northern Territory must report to police, if they believe on reasonable grounds either or both of the following:
‘Another person has caused or is likely to cause serious physical harm to someone else, with whom the other person is in a domestic relationship,’
‘…the life and safety of another person is under serious or imminent threat because domestic violence has been, is being or is about to be, committed.’

The Criminal Code defines ‘physical harm’ to include ‘unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in circumstances…’

Failure to make a report is a criminal offence and can therefore result in a wide range of persons – including professionals and family members who have not themselves committed family violence – entering into the criminal justice system. ALRC Report 144 asserts that it is unlikely that any prosecutions or formal offences have ever been made for this offence.

On the whole, healthcare workers have been positive about the laws, seeing it as a strong commitment and response to a community problem. ‘Mandatory reporting is sending a message to the community, to our friends and neighbours, that abuse will no longer be ignored; that we, the community, will no longer remain silent.’

Since instituted, the positives have included that women become quickly connected to support services, funding has increased for hospital and refuge services, police have increased the number of intervention orders on women’s behalf and there is a pathway to increase prosecutions for violent criminal behaviour. Furthermore, health professionals are encouraged to view domestic violence as a health issue rather than a private social matter outside their scope of clinical practice.

Opposition to mandatory reporting has been voiced on the grounds:

• there is no evidence that it improves safety for the victims
• a significant number of victims are opposed to it
• victims might be deterred or prevented from seeking medical treatment
• women worry about custodial sentences for perpetrators, fear of children being removed by child protection and violent retribution for disclosing abuse
• police do not have the capacity or willingness to investigate all reported cases
• migrant and refugee women are particularly vulnerable to mandatory police involvement with real fears of deportation

Criticism has been made that mandatory reporting threatens women’s dignity and takes away their power; that she is uniquely aware of her personal circumstances and should be empowered to make her own choices with the help of a supportive professional. Mandatory reporting of adult women remains deeply problematic with our ethical underpinnings in respect for autonomy and confidentiality.

Cerebral palsy claims: we can read CTGs, but the system can’t

In 2016/2017, clinical negligence for maternity care cost 1.7 billion pounds and the most expensive claims were for avoidable cerebral palsy (CP). Incidence over the past decade within the NHS has remained static, despite our best efforts.

It is recognised that the majority of CP cases are not attributable to medical error, but in the rare event where this is the case, lessons may be learned.

Recent evidence has given rise to the ‘two-hit theory’. This suggests that in the development of CP, a ‘hostile intrauterine environment’ is coupled with a second intrapartum (chorioamniotits, placental abruption and birth asphyxia) or neonatal event (interventricular haemorrhage, periventricular malacia and sepsis).¹

The UK NHS Resolution, a litigation authority, has recently released a thematic review of CP legal claims that occurred between 2012 and 2016.² Using claims data, they reviewed the root cause analyses (RCAs) and secondly, analysed areas of clinical practice common to the claims.

Errors with fetal heart monitoring were the most common clinical practice theme in the claims (64 per cent) with almost all involving cardiotocographs (CTGs). Errors using CTGs included:

• misinterpretation
• not started when it should have
• false reassurance with an uninterpretable trace assumed to be ‘loss of contact’
• too slow to act once a CTG was identified as pathological
• monitoring of the maternal HR

However, the underlying causes were more often related to systemic factors rather than individual misinterpretation. RCAs were found to be consistently deficient by focusing blame on individuals rather than looking at the environmental and organisational factors responsible for allowing the error to occur. The recurring theme in errors using CTGs was in recommending or reminding staff to follow current guidelines and policies. Individuals were advised to follow policies without an examination as to why they were not followed in the first place.

An example of ignoring cultural factors in an RCA included an instance where a midwife was blamed for misinterpreting a CTG without escalating obstetric review. The subsequent analysis by NHS Resolution showed that there were missed opportunities to act – ‘the CTG was abnormal for 3.5 hours with no “fresh eyes” assessments, no review by a second midwife despite hospital policy requirements, the labour coordinator was in the room twice but did not review the CTG and there was no obstetric review despite this being a high-risk pregnancy’. These fail-safes were not even mentioned in the RCA. It seemed more palatable to appoint individual blame.

Despite, the universality of obstetric authorities (RANZCOG, ACOG, RCOG) to advocate CTG use in high risk women or low risk women who subsequently develop risk factors to prevent poor obstetric outcomes; there is poor evidence for reduction of CP risk. CTG training improves CTG interpretation, gives higher inter-observer agreement and better intrapartum management. This, however, does not confer an improvement in neonatal outcomes. No significant improvement in individual fetal outcomes has arisen from research on ST Segment Analysis (STAN) or the use of a computerised CTG decision support tool (INFANT study).

The issues for prevention of CP risk with CTG use are proposed to be dependent on many factors and thus hard to measure and therefore remedy. The errors are likely to involve cultural factors related to risk: errors in risk stratification, lack of situational awareness, delays in decision-making and escalation, and performing CTG interpretation in isolation while ignoring maternal and fetal risk factors. In summary, CTG interpretation should not occur in isolation. A holistic approach should be implemented, incorporating risk stratification and the timely escalation of concerns.

Breech births overrepresented in cerebral palsy claims

‘I can’t understand why if they’re saying this generation of doctors is unskilled, why are we not up-skilling them?’ said a patient who gave birth with the hospital’s breech clinic earlier this year. ‘We up-skill in all other fields of our work as medicine develops, so why is it any different? It’s not like breech births are new.’ 7 August 2017, The Age Newspaper, Melbourne.

In the 2016/2017 NHS Resolution data of cerebral palsy claims, breech births were significantly overrepresented at 12 per cent compared to the national average (variously reported as 0.4–2.7 per cent). Four of the breech births were term with two at 34 weeks gestation. All were born out-of-hours and 85 per cent were undiagnosed in labour. Most were delivered by an obstetric registrar, without a consultant present. All were an attempted vaginal delivery with half later being converted to an emergency caesarean section.

Since the Term Breech Trial was published in 2000, demonstrating improved outcomes for breech babies delivered by caesarean section, the trend has been for fewer breech vaginal births. The result in the NHS (and likely Australia) has ironically meant that trainees with the least experience are performing the most deliveries, since most are undiagnosed and occur in an emergency situation. This is wholly inadequate since the evidence is irrefutable that having an experienced practitioner present is a primary criterion for safer delivery.

In an undiagnosed vaginal breech scenario, RCOG recommends ‘individualisation of delivery based on stage of labour, whether there are any additional risk factors, such as an extended fetal neck, and availability of skilled supervision’. Therein lies the rub – it needs to be recognised that a lack of experience has led to a loss of skills for all obstetricians, and the trend is for a continuing reduction.

With respect to the up-skilling of practitioners for ‘an attempt at vaginal breech delivery’, efforts need to concentrate on decreasing the number of undiagnosed breech presentations and counselling women to ensure a proper understanding of the absolute and relative risks regarding mode of delivery.

1. Korzeniewski SJ, Romero R, Cortez J, et al. A “multi-hit” model of neonatal white matter injury: cumulative contributions of chronic placental inflammation, acute fetal inflammation and postnatal inflammatory events. J Perinat Med. 2014;42(6):731-43.
2. Magro M. NHS Resolution. Five years of cerebral palsy claims. A thematic review of NHS Resolution data. September 2017.