Department of Health RRR Consultation - A Rapid Resolution and Redress Scheme for Severe Avoidable Birth Injury

The Department of Health has issued a consultation paper seeking comments on its suggested alternative compensation scheme for babies who have been brain damaged at birth by poor medical care. The consultation, A Rapid Resolution and Redress Scheme for Severe Avoidable Birth Injury sets out the rationale and framework for a voluntary, systematic investigation and NHS-led compensation scheme.

The Rapid Resolution and Redress (RRR) scheme was devised in response to Baroness Cumberlege’s recommendations in The National Maternity Review (Better Births, 2016). It has three stated aims:

• To improve safety
• To improve the experience for families when things go wrong
• To make more effective use of NHS resources so that more funds can be invested in frontline care

The voluntary RRR scheme will apply to families of babies in England who have suffered severe, avoidable birth injury at term. For the purposes of the scheme, term is defined as 37 weeks gestation or more. It will not apply to premature babies or those who suffered their injury during antenatal care at an earlier stage in the pregnancy. The two-stage scheme will routinely identify babies who have the following early markers of severe birth asphyxial brain injury at seven days of life:

• Hypoxic ischaemic encephalopathy (HIE) grade three or
• Decreased central tone (floppiness) + comatose + seizures (fits) or
• Has received active therapeutic cooling treatment

The RRR scheme will not apply to stillbirths, neonatal deaths, maternal injury or maternal death, or injuries arising from antenatal complications.

Under the scheme, if a baby exhibits the signs listed above, within 90 days of birth an investigation into the root cause of the injury will be commenced. The consultation states that these early Stage One investigations will be ‘consistent, robust and independent’ – essential conditions for gaining patient trust after the birth of a baby has gone wrong. Past experience of the NHS Complaints Procedure and Serious Incident Framework reporting has shown the quality and integrity of individual Trust-led investigations to be variable, often leading to further frustration and distrust. While the consultation affirms the importance of perceived independence in gaining patient trust and invites comments on how this could be achieved, its tentative suggestion that the ‘independent investigation’ could be carried out by a neighbouring NHS Trust is unlikely to be of much reassurance to the parents of a severely brain damaged baby.

The primary purpose of the Stage One investigation is to gather data to enable the system to learn from its mistakes. Patient input will be sought and there will be an opportunity for face to face meetings with the family to discuss the investigation report. They will also receive an apology worded in the form of ‘a statement of regret’.

Eligibility for compensation

At Stage Two of the RRR scheme, those who are deemed eligible by a separate panel will be offered compensation. The eligibility criteria for Stage Two compensation is critical to the entire scheme. It raises an ideological and ethical question which will inevitably be answered on financial criteria. The implications of the level at which the eligibility standard is set could be life-changing for patients who would otherwise be ineligible for compensation. A more inclusive standard could have wide-ranging ramifications for the Department of Health, obviating the financial benefits to the NHS which underlie the entire rationale for the proposed scheme. However, on the evidence that is currently available (as set out in the Impact Assessment which accompanies the consultation) a more inclusive standard which opens up entitlement to compensation to a whole new class of victims of substandard medical care is precisely what is needed if the primary objective of the scheme is to be met. Remember, the primary purpose of the scheme is not to compensate more people, it is to improve patient safety – on the understanding that by doing so the incidence and cost of litigation is reduced.

The RRR consultation invites comment from interested parties on the standard at which eligibility for RRR scheme compensation should be set. The ‘reasonable care’ option reflects the current legal test that must be satisfied for an injured patient to succeed with a medical negligence claim. Here, the patient is only entitled to receive compensation if their injury was caused by treatment which no responsible body of medical opinion would condone. In other words, the claimant can only be compensated if the treatment was so poor as to be incompetent by any medical standard.

The alternative option is to set eligibility on the basis of the ‘experienced specialist’ test. This is not quite no-fault but is designed to imply system failure rather than the blaming finger-pointing at a particular practitioner’s treatment which the current legal test requires for a successful claim. Here, the question to be asked is, “Would this injury have been avoidable if the treatment given was optimal, such as that offered by an experienced specialist in this medical field?”

Whilst the ‘reasonable care’ test would effectively limit the number of eligible patients and cost of RRR scheme compensation to the NHS, the consultation and the evidence underpinning it suggests that a key pre-requisite of the scheme – the creation of a culture of openness and learning within the healthcare system – will not be achieved with this blame-laden eligibility test in place. It is the wider, more inclusive ‘experienced specialist’ test which has proven so successful in reducing medical negligence litigation by as much as 50% in Sweden, the country which has inspired the Department of Health to believe that a more open and learning culture within the NHS could reduce claims as learning is shared and standards of healthcare improve. It must be remembered, however, that Sweden provides more comprehensive healthcare services for its disabled than we have here in the UK. In Sweden there is less need for compensation.

The Impact Assessment acknowledges that within the NHS fear of litigation is not the only barrier to achieving openness and shared learning among clinicians on a scale that will enable the scheme’s objectives to be met. The introduction of a duty of candour and Serious Incident Framework reporting have both failed to encourage openness. Fears about professional reputation and employment status following a mistake all contribute to the problem. Professional accountability cannot be diminished in a health system which cares about maintaining standards. Even with a wider RRR eligibility test, professional accountability must still be upheld.

Wider eligibility under the scheme must be welcomed if it provides redress for babies with severe brain damage who would not otherwise be compensated. At Boyes Turner we are always saddened by having to turn away families of birth injured babies whose needs are as pressing as those of our clients but whom we can’t help because they wouldn’t pass the legal test. We’ve already seen that without wider eligibility, the primary objective (greater learning, improved standards, fewer claims) is unlikely to be achieved. This presents an insurmountable problem for the Department of Health which must prepare for an unprecedented number of claims. The Impact Assessment estimates an increase of 60%. Our experience as specialists in cerebral palsy claims and RCOG data both suggest that 60% is an underestimate. The stringent legal test is not the only factor which currently limits the number of successful claims. Parental lack of awareness and insight into the true cause of their baby’s condition, natural but misguided feelings of maternal guilt, empathy or pity for the overworked midwives and fear of suing the system on which their baby depends, all inhibit potential claimants from pursuing their claim. In contrast, ‘consistently, robustly and properly implemented’ RRR Stage One investigations will alert the parents of all eligible babies to the cause of their newborn baby’s condition and their entitlement to a non-litigious source of compensation.

Assuming a 60% increase in eligible babies, how does the Department of Health propose to compensate them?

The consultation tells us that at Stage Two, eligible families will be offered ‘a full compensation package’. This is currently anticipated to comprise:

• ‘An early up-front payment of damages’ by way of a lump sum of £50,000 to £100,000. The expectation is that this will be paid when the child is four, unless their eligibility for compensation can be assessed at an earlier date. At Boyes Turner we routinely enforce our clients’ entitlement to an interim payment as soon as liability has been established. Our severely brain damaged clients generally receive an initial interim payment of at least £250,000.
• A lump sum – set at approximately 50% below the lump sum figure that a successful claimant could expect to receive from a court award or settlement.

Throughout the impact assessment, the relative cost-saving advantages to the NHS of reducing money paid now for the promise of something in the future is debated. Unlike compensation awards which are usually protected and managed by the Court of Protection but are owned outright by the claimant, all future payments under the RRR scheme will be subject to lifelong ongoing assessments of need against a background of budgetary considerations.

As specialists in securing compensation and case managing care and living arrangements for families of brain damaged babies, we know that many of our clients rely on their lump sum payment to finance the purchase of an adapted and accessible house, essential equipment, transport and other capital costs in a way that it would not be possible with a discounted lump sum. In reducing the proposed lump sum cash award, the RRR scheme fails to consider the wider needs of the family of a brain damaged child. Deferring the greater proportion of their compensation to needs-test-dependent future payments denies the family the ability to carry out the capital cost adaptations which enable family life to continue for the disabled child. Far from improving patient experience – a key objective of the scheme – lifelong reassessments will only prolong the stress, administration and uncertainty of their child’s future care provision as their approved compensation can be reduced at any time. This lifelong need to prove their entitlement removes their control over how they apply their compensation, denies them independence and freedom of choice and is intrusive for the rest of their child’s life.

• Periodical payments – which it is suggested might be paid partly “in kind”. This part of the proposal suggests that cash settlement will be traded for services. For the scheme to work financially, it is clear that despite assurances as to overall value, cash payments must be kept to a minimum.

The overall compensation, we are told, will equate to 90% of a comparable damages award. It is unclear how this compensation is made up. On the figures set out in the Impact Assessment, the anticipated costs for certain heads of damage clearly fall far below the sums that we are recovering for our clients. Following recent changes in the discount rate court awarded damages for future costs are set to rise quite considerably when the new rate comes in later this month.

Details aside, it is clear that given the accepted need for a wider eligibility test and a 60% increase (on DOH figures) in claims, the suggestion that claimants will receive a compensation package equivalent to 90% of a comparable court award doesn’t stand up to logical or financial analysis. For the scheme to work, it must achieve its primary aim, a saving of money for the NHS. As the proposed RRR scheme is currently presented, 160% of current claims x 90% of damages does not equate to lower cost.

The figure of 90% compensation (albeit paid partly in kind and deferred to the future) has been put forward as a necessary minimum. It is the level at which the Department of Health believes rational parents will not be willing to ‘gamble’ their child’s health services package for the potentially more remunerative but riskier litigation route.

The RRR scheme is voluntary and families are free to opt out at any time but in doing so they will lose their entitlement to services. Clearly, if following the result of the eligibility investigation there is strong evidence to suggest that they would succeed with a medical negligence claim, there are advantages to them doing so. The consultation suggests that families will have access to legal advice in relation to their options – from whom, with what degree of independence or proven specialism in securing compensation for patients with birth injuries is currently unclear. It is also unclear whether, having investigated the case ‘robustly’ at RRR Stage One, admissions of liability for the purposes of litigation will be offered in appropriate cases. This would be the ultimate in openness, an approach which would enable the affected family to make an informed decision and one that would be well within the remit of the body chosen to run the scheme, the National Health Service Litigation Authority (NHSLA) which currently defends medical negligence cases for the NHS.