National Maternity review recommends 'redress scheme' for birth injuries

The National Maternity Review was published in February 2016. One of the recommendations is for a ‘rapid resolution and redress scheme’ for birth injuries.

Compensation for birth injuries

It is felt that the current system for obtaining compensation for birth injury is complex and costly and fails to achieve the three objectives that it should, namely:

1. Rapid, compassionate support for parents.
2. Effective learning for staff.
3. Improved outcomes and reduced incidences of harm.

Introduction of new ‘redress’ scheme

The rapid resolution and redress scheme would provide redress to families whose babies had suffered harm, without the need to go through the courts. It is suggested that the scheme would apply to babies of 37 weeks or more gestation, who were considered healthy when labour commenced and who suffered serious injury.

The test would be whether the harm was the probable consequence of the treatment provided, or not, during birth.

Could this mean the end of birth injury related negligence claims?

It is not proposed that the scheme would remove the parents’ right to pursue a claim for negligence through the courts, but any payments through the scheme would be deducted from any compensation received through litigation in the courts.

It is felt that such a scheme would improve the effectiveness of learning as it will remove the need to prove an individual has been negligent. However, it is suggested that families would receive a capped amount of compensation, so less than they would receive through the courts.

Susan Brown, head of the cerebral palsy claims team at Boyes Turner, commented on the review recommendation:

“This isn’t the first ‘no fault’ compensation scheme that has been proposed for babies damaged at birth. Such schemes have failed in the past because of concerns about affordability and that must remain a concern. If families are to be adequately and fairly compensated for their baby’s injury then it has to be based on the individual needs of that child, rather than some arbitrary sum. What is really needed is a system that drives improvement in the provision of obstetric care and avoids these injuries in the first place. That is what will really make the difference. Whether changing the test from negligently caused injury to avoidable ‘harm’ will really drive that improvement is questionable”.