In respect of trusts that are not retaining fetal cardiac views;
We feel these trusts are significantly exposed and potentially vulnerable to litigation. Our opinion is based on the range of guidelines we’ve reviewed from further clinical groups, clinical governance standards, and patient data protection laws. Collectively we feel this creates a framework within which significant medical information (such as fetal cardiac views from ultrasound scans), should be properly documented and retained.
1.We don’t feel these hospitals are fulfilling their duty of candour. All healthcare professionals have a responsibility to act in an open and transparent way. It wasn’t openly disclosed to us that only our daughter’s cardiac views were not being retained amongst so many others that were. Many other hospitals routinely do retain such views. We feel those trusts that don’t should explain this to patients and provide the option of attending elsewhere.
2.Families are not allowed to record their own views. We were directed through signage and correspondence from our trust that we weren’t allowed to make our own recording or take images at our scan. We could only pay £5 to our trust for three printed images of the fetus.
We’ve reviewed many local hospital policies around patients making their own recordings at scans. We’ve not seen any policies that permit recording equipment (audio or visual), during the obstetric ultrasound examination. We understand NHS sites are not defined as public spaces. Therefore it is the responsibility of local NHS Trusts to set their own policies to ensure the safety and well-being of staff and all patients. Whilst a number of bodies such as SoR, RCOG, RCM and BAUS have recommended patients don ‘t make their own recordings, it is the responsibility of each trust to justify and set their own local policy.
We understand there is a difference between patient consultations and medical diagnostic examinations. The benefit of patients recording of their consultations in an open and transparent way for clinical reasons is widely accepted and encouraged throughout the medical community. NICE, GMC and BMA guidance outline the benefits for patient care in permitting the recording of consultations (listening again & helping to remember what was said to make informed choices)
Medical diagnostic examinations are considered differently. Examinations such as x-ray, MRI, or CT have the potential for interference with electronic medical equipment. There are restrictions on the use of mobile phones and personal recording devices in these areas. It is widely accepted these can affect medical equipment and patient recording is not appropriate.
The ultrasound scan is also deemed a medical diagnostic examination. However, recommendations that patients shouldn't be recording their own views are less compelling when it comes to ultrasound. This has resulted in four further SoR publications on this issue alone since 2019. SoR have not suggested equipment interference. We’ve reviewed the recommendations of the SoR, RCOG, RCM and BAUS. These are only advisory in nature. These suggest patient recordings could interfere with sonographer concentration, provide distraction and interfere with sonographer privacy expectations. They should be discouraged as a result. “There can also be major distractions caused to the sonographer in a highly litigious area of practice at a time when very high levels of concentration are required”. (SoR)
It is clear to us there is acknowledgement from NICOR, the CHD CRG and a significant proportion of trusts in England, that there is clinical value in fetal cardiac view retention. Therefore if trusts are not retaining these we feel patients should be entitled to make their own recordings for clinical reasons (openly and transparently). Further local policy could be implemented to address potential for sonographer distraction and ensure staff privacy is respected.
Chapter 5 of the NHS obstetric ultrasound examination guidance concludes by recognising that there can be good reasons why a patient wishes to record a clinical discussion, consultation or treatment. It states permission would not be required for a patient to make an audio or video recording of a diagnostic imaging examination. The guidance concludes that hospital departments should develop local policies and procedures for requests to make video/audio recordings.
SoR appear to concede that capturing a full examination through footage would be best practice; “As technology develops, entire examinations may be able to be routinely saved, thus removing the need to select specific images for recording”. If trusts cannot afford to store the data, the option should be offered to the patient to secure the views and retain the data themselves on their phones. The CHD clinical community appears to recognise that still 2D images of a rapidly moving 3D heart structure often don’t adequately show what can be seen in a moving video clip.
It also sits uncomfortably with us that trusts are charging relatively high fees of £5 for such small numbers of printed images – while simultaneously not allowing patients to record and not retaining fetal cardiac views themselves. SoR actually suggest a system of voluntary patient donation rather than a fixed fee system for images (which can ultimately be acquired through subject access requests for free anyway)
3.Image retention value. SoR Guidelines are updated and published each year, unlike the FASP guidance from 2015. Whilst suggesting patients shouldn't make their own recordings; SoR simultaneously advise;
“The compilation of an appropriate number of annotated images that represent the entire ultrasound examination is good practice as it provides the following:.. Evidence that the examination was carried out to a competent standard”
“Reviewing images and reports is the essential first step in an ultrasound audit programme”.
[retaining views provides] "Support for the written report. A second opinion to be given on those parts of the examination that have been imaged. A contribution to clinical governance through audit and quality assurance procedures. BMUS recommended audit tool. A teaching tool".
“When undertaking an audit programme within an ultrasound service, a holistic view of the quality of an ultrasound examination is required. While image quality and overall report accuracy are important, it is essential that other factors such as clarity, content, readability and relevance of the report should be assessed”.
The Medical Defence Union also suggests recordings benefit both the clinician and the patient.
FASP QA 2024 suggest;
“Reviewing ultrasound images and providing feedback to ultrasound practitioners can help to improve the quality of images”.
“The review of ultrasound images aims to:”, “Provide regular feedback to ultrasound practitioners”, “Encourage shared learning”, “Reviewing ultrasound images is an essential part of the: “practical training process for trainees, induction process for new staff, management of red flags, 3-monthly departmental image review”, “The SSS (dedicated screening support sonographer) should make sure there is a: documented process for departmental review of ultrasound images”
“Shared learning: sharing key learning points from all image reviews with the department”.
We feel some trusts have disregarded this guidance and more from other medical bodies and are attempting to justify local policy based on the non-prescriptive 2015 NHSE FASP guidance only. There is recognition this is a “highly litigious” area – yet for many trusts fetal cardiac views are not kept. Could this be an indication of deliberate obfuscation of records?
4.Trusts are divided. The FOI requests we have submitted to all acute trusts in England are still being returned. Currently, there appears to be a 50/50 split between trusts that do retain views, and those that don’t. There is also an emerging north/south divide - with southern trusts appearing to consistently retain views. Trusts in England appear to be interpreting the range of guidance in existence differently.
“The standard of care provided by a competent ultrasound practitioner is that which the majority of similar individuals would provide and/or which a significant body of similar individuals would provide in similar and contemporaneous circumstances. Images that accompany an ultrasound examination carried out by a competent ultrasound practitioner evidence the assumption that the necessary standard of care has been delivered”. SoR.
Based on this apparent 50/50 split, there appears to be a significant body of competent individuals that are retaining views in order to demonstrate their delivery of an appropriate standard of care.
In conclusion: “the rule of law requires a public body, in the formulation of policy, to take all reasonable steps to acquaint itself with the relevant information to enable it to make an informed policy decision: Secretary of State for Education and Science v Tameside MBC [1975] AC 1014 at 1065B”. Extract taken from Shu Shin Luh’s legal opinion for Birthrights.
We feel some trusts have closed their minds to all relevant and available evidence that it is required to address in its policy formulation. We feel trusts such as ours are failing their duty of care towards patients on this basis.
Balance all that recent guidance above with the single 2015 FASP sentence "there is no requirement to archive images of the fetal cardiac protocol views". Which way do the scales tip for you?
It all seems a bit of a mess to us.
Molly's parents