The High Court has ruled that retrospective changes to the LGPS exit credits regime were lawful – and gave some helpful guidance around the new discretion to pay an exit credit.
On the face of it, Rajatheepan v Barking, Havering and Redbridge NHS Foundation Trust is a case about a mother being unable to breastfeed - but it isn't really. Really the case comes down to a hospital’s failure to overcome the language barrier, resulting in a newborn baby not feeding and therefore suffering a life-changing brain injury.
Briefly, Mrs Rajatheepan tried to breastfeed her first child but the midwives failed to provide any help or support. They didn’t explain how to breastfeed or what to do if she was unable to feed her baby – standard elements of the care provided to all new mothers. The reason for not receiving this care and advice was that Mrs Rajatheepan and the midwives didn’t speak the same language and the midwives failed to use alternative methods of communication. They didn’t:
- use the hospital’s own translation service (a ‘language line’ telephone);
- involve an interpreter;
- involve the consultant obstetrician who spoke with Mrs Rajatheepan in Tamil previously;
- ask her relatives who spoke English and Tamil to help with these conversations even though that had worked well previously;
- have the large set of important discharge documents translated before handing it over to her.
The judge was of the view that the midwife who discharged Mrs Rajatheepan should not have done so without, at the very least, Mr Rajatheepan being there to assist with communication or, more appropriately, the use of the ‘language line’ or of an interpreter.
Furthermore, the midwives should not have ignored Mrs Rajatheepan when she tried to ask for help feeding her son on the ward and raised concerns that he would not stop crying on discharge. Instead, the midwives repeatedly said it was “perfectly normal” for newborn babies to cry and didn’t investigate Mrs Rajatheepan’s concerns. They didn’t communicate to her what warning signs to look out for and what to do if she had concerns. As such, she didn’t know to seek medical advice when he was pale, lethargic and had not fed for over 12 hours. Having repeatedly been ignored and had her concerns brushed aside might well have had an impact here too. The day after discharge the community midwife visited and immediately requested emergency re-admission to hospital, but by that time it was too late.
The judge found the failure to overcome the language barrier and actually communicate with Mrs Rajatheepan amounted to negligence. He found that if they had actually communicated with Mrs Rajatheepan, she and her baby would not have been discharged so early, the feeding difficulties would have been recognised and acted upon, and the baby would not have suffered the brain injury.
This case is a reminder that communication is two–way; it’s not about telling someone what they need to know – it’s about the person taking on that information, the other person also listening and understanding what they are being told.
The tragedy in this case is that there were options readily available to the midwives that they could have used. This was not a case of having to go above and beyond or using over-stretched resources or the complexities of rare languages. The hospital Trust was in the east London borough of Redbridge where, in 2011, the Indian population was 16.4%, so Tamil was a common-place language in the community.
Of course the need to overcome the language barrier extends far beyond hospitals and medical care. As lawyers we recognise the importance of effectively communicating with our clients and building a rapport. Across our firm we speak many languages and are happy to arrange interpreters when appropriate.
For more information regarding our work, please contact Ann Houghton who will be happy to speak to you on an initial free, no-obligation basis.
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