Avoidable birth injuries - 'Rapid Resolution and Redress Scheme'

Health Secretary, Jeremy Hunt, has invited parents of children who have been injured at birth to speak out about their experiences. Their input will form part of a consultation process leading up to the introduction of a government funded ‘Rapid Resolution and Redress Scheme’ to provide birth injury compensation for children.

Raising standards of care

The aim of the proposed scheme is to raise standards of care by encouraging medical staff to speak openly about maternity care mistakes when things go wrong. The government hopes to reduce the fear of litigation amongst maternity staff through the voluntary compensation scheme, replacing the ‘blame culture’ with a more transparent environment in which NHS staff are willing to talk about what has happened and learn from their mistakes.

New investment and improvements

In addition, the Health Secretary has announced further measures to improve standards of care and safety within NHS maternity units. These include £8 million for training and £250,000 to pilot new ideas for improving maternity care, alongside a quality improvement programme for all maternity units and a maternity ratings system for clinical commissioning groups.

As leading medical negligence specialists with over 20 years experience of recovering compensation for clients with birth injury, neonatal brain damage and cerebral palsy, we welcome all action taken to enhance patient safety and raise the standard of maternity and neonatal care in hospitals. But any attempt to increase open communication and learning through investigation and analysis of past mistakes must be accompanied by a more open and caring approach towards the injured children and their parents as they try to come to terms with the tragic loss of their child or devastating injuries which will last a lifetime. These families need to be heard and acknowledged, and their right to receive adequate compensation for their loss and the cost of supporting and caring for a disabled child must be respected and safeguarded.

No-fault compensation scheme for victims of medical accidents

The government’s new proposals are intended to provide a voluntary scheme in which compensation is available for ‘avoidable’ injuries without the need for a legal claim via the courts. If the Rapid Resolution and Redress Scheme comes into effect, it will be the first time the UK has had a no-fault compensation scheme for victims of medical accidents. Until now, it has always been necessary for claimants to justify their entitlement to damages through the court system by proving that their injury was caused by medical negligence – a system which has blame and accountability at its centre. To date, the mere fact that the injury was ‘avoidable’ is not enough to entitle the victim to compensation. The failure to avoid has to have been negligent. It is unclear from the current proposals how eligibility for avoidable injury under the scheme will now be determined.

Quicker compensation?

Another admirable aim of the scheme is to reduce the time it takes to compensate patients but in the case of more complex and severe injuries this may not be as simple as it first appears. Under the current system, it takes time to investigate the events which took place at the time of a baby’s birth. We have to obtain the medical records and the opinions of medical experts on the standard of care and the cause of the baby’s injury and then issue court proceedings and pursue the claim through the court – a process which takes even longer where the defendant refuses to accept liability for the injury. In principle, of course we welcome the idea of a quicker, less complicated process in which the NHS takes responsibility for its mistakes and provides compensation for the victims, but it remains to be seen what criteria the proposed scheme will use to assess whether an injury was ‘avoidable’ and how it proposes to quantify the long term effects of the child’s brain injury more quickly than the current system but with equally reliable accuracy.

Early access to compensation already available

We often act for children in cases where liability has been accepted and judgment obtained but the child is too young for the medical experts to assess the full future impact of their brain damage. In these cases our expert lawyers routinely obtain interim payments of damages. In this way, whilst the case takes time to be fully concluded, in the meantime the child and their family can have early access to the money that they need for care, adapted housing and equipment, in the knowledge that their child will be properly compensated for the full, rather than short-term, effects of their injury.

Current flaws

Under the current system, in addition to proving their entitlement to compensation, injured or bereaved claimants must justify the cost of bringing their claim when compared to the compensation that a court would award. Sadly many tragic cases of stillbirth or neonatal death do not attract sufficient compensation awards to pass this ‘proportionality’ test, leaving the parents without any form of redress, feeling bereft and unacknowledged. In such cases, we agree that there are obvious benefits to a voluntary, government funded compensation scheme which picks up the responsibility for compensating patients where the court system fails to provide them with access to justice.

Claimants can still use the courts system

The Health Secretary has indicated that claimants who have been seriously brain injured as a result of avoidable birth injuries will still be entitled, if they wish, to pursue their claims through the court. It is unlikely that the voluntary scheme would be able to cater financially for the needs of all those who have suffered avoidable severe brain damage, cerebral palsy and neurological injury. These cases are complex in terms of liability and they tend to be hard fought in relation to damages as the sums needed to provide nursing care, adapted accommodation, therapies and equipment for the rest of the child’s life are so great.

These claims require expert handling by specialist lawyers. Whilst we wholeheartedly agree that victims of avoidable birth injury should be compensated quickly and have access to honest and open information about the circumstances in which their injuries were sustained, until a voluntary scheme is able to provide full and fair compensation to patients who have been injured as a result of negligent maternity and neonatal care, we remain committed to helping these families make their claims through the courts with the benefit of Legal Aid.