The health secretary’s rapid redress scheme is another exercise in trashing the value of lawyers.
Health secretary Jeremy Hunt was probably pleased with press coverage of his policy announcement of a scheme to settle more swiftly claims relating to medical accidents that result in brain damage in babies. The headline on the free commuter paper I picked up that day (‘Plan to save NHS millions in birth-damage court cases’) was fairly typical.
In fact, what we have got, on close inspection, is yet another lawyer-bashing scheme that attempts to limit access to justice, wrapped up in a muddle of messages and snazzy soundbites.
Hunt’s scheme would consist of a voluntary scheme to ‘settle complaints more quickly’ and ‘allow medical staff to speak openly about their failings and learn from their mistakes’.
But do we not have this already? Did November 2014 not see significant progress through the introduction of a duty of candour, addressing just this issue?
Hunt’s Rapid Resolution and Redress scheme (RRR), as it is titled, is pretty much the investigation stage of a claim. That is again, if I am not mistaken, something that already happens.
Contrary to popular belief, a clinical negligence specialist does not just run any old claim, close their eyes, cross their fingers and hope for the best.
We have the skills and integrity to ensure that if a claim is viable then justice must be pursued. The very last thing I and my peers would wish is to take an already shell-shocked family through a legal process that we know will not be successful.
Hunt remarks that the ‘blame culture’ we have in this country prevents an open and honest conversation, as there is an overarching fear of disciplinary action or the loss of reputation – and this is due to the threat of litigation. What is unclear is how RRR will be any different. Will a ‘no-fault compensation scheme’ mean that medical staff are entirely exempt from disciplinary action and will remain anonymous? That is doubtful.
It is not in our interests to prolong litigation or make meritless claims
Claimants in cerebral palsy cases generally approach lawyers because they want answers, to be listened to, to prevent any future accidents happening to anyone else and, finally, financial help to make their baby’s life as good as it can be.
All the clinical negligence lawyers I know in this field act as a confidant as well as a litigator and will only guide their clients down the right path. Our aim is not to make as much money off the NHS Litigation Authority as possible, but to ensure that justice is served, answers are provided and rightful compensation is recovered.
It is not in our interests to prolong litigation or make meritless claims. Some 11 years is cited as the average length of such medical accident cases. If that is accurate, there are reasons for this – causation issues, awaiting opportune times to assess condition and prognosis, disclosure barriers and obtaining the right independent expert (which, with the caps on expert fees for claimants only, presents its own challenges).
Lawyers will ensure that claimants do not wait 11 years for their ‘payout’. There are interim payments, funding for care teams, therapy and provisional damages available along the way. All these happen while the final outcome is correctly and meticulously assessed – after all, we are talking about a child’s whole life.
The RRR appears at best to be another mountain for the already disadvantaged claimant to climb; another opportunity to trash the value of the clinical negligence lawyer; and, at worst, a way to chip away further at access to justice.
What needs to be done to reduce these claims is more funding for the NHS in areas where errors lead to claims. The health secretary should let lawyers get on with what we are good at and respect the fact that the experts among us are more than capable of triaging claims and are only presenting those which deserve justice.
Elizabeth O’Mahony is a senior solicitor specialising in clinical negligence claims at B L Claims Solicitors