NHS Resolution Annual Report 2019/20 - protecting the NHS against injured patients?

NHS Resolution, the organisation which defends the NHS against clinical negligence claims, has published its annual report for 2019 to 2020. The report contains the usual headline-grabbing figures for compensation paid to patients injured by negligent care, with provision for £82.8 billion for current, ongoing or possible future claims. Whilst NHS Resolution congratulates itself on admitting liability within ‘unprecedented’ timescales in 51 cerebral palsy birth injury cases, we remain concerned that many families of brain injured babies are not receiving independent and adequate advice and information. 

What is NHS Resolution?

NHS Resolution is the NHS’s defence organisation. Its stated purpose is ‘to provide expertise to the NHS to resolve concerns fairly, share learning for improvement and preserve resources for patient care.’ A key aspect of its role is to investigate and defend patient claims arising from negligence by NHS hospitals and GP services and reduce sums paid out in compensation.

What is Early Notification and Early Intervention?

In recent years, NHS Resolution has required hospitals to report when a baby has suffered a severe brain injury so that NHS Resolution can investigate and communicate with the baby’s parents at an early stage. NHS Resolution claims that ‘Early Notification’ and ‘Early Intervention’ leads to earlier support for parents whilst helping the NHS learn from its maternity mistakes. 

Whilst NHS Resolution uses these processes to gather data to support NHS learning, Boyes Turner, and other claimant birth injury lawyers, have raised concerns about the way the process is being used to communicate with and influence parents. NHS Resolution’s early intervention gives the NHS legal defence team the opportunity to ‘advise’ the parents of the injured child (the potential claimant) when they are at their most vulnerable, at a genuinely unprecedented early stage. We remain concerned that vulnerable parents are being advised about the cause of their child’s injury from the NHS defence team’s point of view and are not being told that it is in their child’s best interests to seek their own advice from a claimant-specialist birth injury lawyer about their child’s right to claim compensation.

NHS Resolution Annual Report 2019-2020 – defending the NHS against injured patients? 

NHS Resolution’s Annual Report says that its ‘flagship’ Early Notification Scheme is now delivering ‘real benefits to patients and the system’. It refers to the Early Notification Scheme Progress Report in which emerging maternity safety themes were identified and shared for NHS learning. Raising awareness of emerging safety themes is a valuable learning tool and it should follow automatically that those who suffered injury from the experience are informed and compensated. However, as I noted recently in relation to NHS Resolution’s commentary on one of those themes, hyponatraemia, they were apparently unaware of whether the injuries and their cause had been communicated to the babies’ parents. 

Maternity claims, mostly brain injury at birth from negligent care, accounted for 69% of the annual £8.3 billion cost of harm in England from claims relating to secondary (hospital) care. The true figure paid out last financial year was £2.3 billion, with a commitment to ongoing, annual, lifelong payments (via PPOs) to pay for care for the most severely injured children. As at 31st March 2020, NHS Resolution’s ongoing responsibility for PPO payments on previously settled cases was expected to cost £18.7 billion during the remaining lives of many severely disabled children. Based on what they know about claims received and ‘claims that we are likely to receive in the future from those incidents which have occurred but have yet to be reported as claims’ NHS Resolution’s provision for future claims against the secondary care system (ie NHS hospitals) in England is £82.8 billion. 

The Early Notification scheme apparently received 57 new claims in 2019/20. Knowing that birth-related brain injured baby cases account for the majority of the £82.8 billion provision, we should consider how many children NHS Resolution know have cause for a claim, and whether their parents have been made aware and properly advised about their child’s injury and their entitlement to claim. 

NHS Resolution has previously highlighted better NHS staff compliance with the duty of candour as key if maternity services are going to change. Their recommendation recognised the number of claims which arise out of patients’ frustration at the lack of openness and information they receive when searching for answers about failings in care. As an NHS defence organisation ‘advising’ parents about their child’s rights following a negligent injury, we can’t help but wonder whether NHS Resolution is practising what it preaches.

Meanwhile, NHS Resolution reports that it is actively looking at ‘innovative ways of measuring and defining compensation’ for babies harmed by negligent maternity care. Compensation for a child with devastating brain injury caused by maternity mistakes is a measurable entitlement that is currently defined by law. The fact that it is expensive does not justify depriving injured patients of their full entitlement to compensation or the awareness that the circumstances of their child’s injury entitles them to claim it. 

NHS Resolution say no claim. Can I claim for my child’s brain injury?

In their report, NHS Resolution say that their role is not to defend the NHS at all costs but to handle claims that are made against the NHS and achieve a fair resolution for all parties. The fact remains that a key aspect of their role is to preserve NHS resources by reducing compensation. Parents who are ‘advised’ by NHS Resolution following their baby’s brain injury should be made aware at the outset that NHS Resolution cannot provide them with independent legal advice. They are the NHS’s defence organisation. 

At Boyes Turner, our brain injury lawyers often disagree with NHS Resolution’s assessment of our clients’ prospects of success. We recognise negligent care and have an outstanding track record of success in these complex claims. Last year, half of all our trial wins and settlements were in cases where NHS Resolution tried to deny liability for our clients’ injuries. NHS Resolution’s Annual Report confirms that its early decision making in relation to claims is not robust, as NHS Resolution failed to meet its own target for ‘initial repudiation of claims later compensated’.

Parents whose child has suffered a brain injury around the time of birth should always seek independent legal advice from specialist claimant (acting for the patient) solicitors who are experienced in severe birth and neonatal brain damage claims. We can often help our clients secure early admissions of liability and substantial interim (part) payments. Last year, almost all of our clients with cerebral palsy and birth-related neurological injury received initial interim payments of at least £250,000. Those whose cases were adjourned whilst waiting for the child to develop enough to be properly assessed received interim payments of between £1.4million and £2million to pay for care, adapted accommodation and other essential needs, long before final settlement. 

If you are caring for a child or young adult with cerebral palsy or neurological disability caused by maternity or medical mistakes, you can find out more about making a claim by emailing us on cerebralpalsy@boyesturner.com