Uncertainties remain over government scheme to reform birth injury compensation, but it’s a start.
Amid headlines of spiralling negligence bills faced by the NHS and a Public Accounts Committee report criticising the NHS for its defensive culture and failure to learn from mistakes, the government’s plan to introduce a rapid redress scheme for birth injury compensation looks like a step in the right direction.
Half of all litigation claims against the NHS are apparently now maternity related and a recent international study showed that Britain’s record for stillbirths and brain injuries at birth compares poorly with that of other developed countries.
The rapid resolution and redress (RRR) scheme, first proposed in October 2016, aims to offer families of children suffering severe brain injury at birth speedier access to compensation through a voluntary, tariff based compensation scheme.
As a medical negligence lawyer specialising in birth injury claims, my view is that any scheme is to be welcomed if it eases the process of families receiving compensation and crucially involves the NHS learning from mistakes.
That said, the government’s latest paper (published in November) responding to the consultation exercise about the scheme raises questions which we must hope will be addressed before the final policy document due in Spring next year.
Much is made in the response to investigation under a RRR scheme. Firstly, any new scheme should not detract from the existing internal investigation regime in place within the NHS. Local investigation taking into account local knowledge and practices will be important. I would like to see the NHS invest more heavily in training in the ’root cause analysis’ approach to investigations which already exists but is not enforced as fearlessly as it could be.
Secondly, the composition of the RRR investigation panel is key. This should consist of trained investigators and not staff members of the trust involved. The government’s response refers to a new independent ombudsman overseeing investigations and determining eligibility for compensation under the scheme. In principle this sounds sensible provided the ombudsman sits with a panel comprising medical professionals and lawyers so collective and accountable decisions are made. It is vital that any scheme introduced places patients and families at the centre of the process. Without this safeguard there will be lack of ‘buy-in’ from patients.
The biggest uncertainty from the government’s response is the scope of the RRR scheme and the use of an avoidable harm test. Opt outs will be important for those cases which do not fit in a prescribed category. Avoidability inevitably involves a determination of whether care met an agreed standard and this sits uneasily with the principle of no blame redress. The options are to determine whether an injury was avoidable by applying either an ‘experienced specialist’ or ‘reasonable care’ test. It is crucial that we avoid a two tier system where the burden of proof differs. It would be unfortunate and confusing if the RRR scheme were to apply a different standard to that used in civil litigation. This would create uncertainty to both the medical profession and patients, and risks increasing the involvement of lawyers. Two systems using differing standards, criticisms and potentially identifying differing lessons to be learned could create more problems (hence costs) than it solves.
It goes without saying that the introduction of the RRR scheme will change the role of those in the claimant lawyer community. It will require us to give clear guidance to clients on the advantages of an effectively mediated outcome and explanation on when adversarial claims are better pursued involving a full blown court process. It will mean we really need to understand the key drivers for our clients as well as the strength of evidence of their case.
Of course the scheme does not address the fundamental cause of birth injury claims which is also where the government should be focusing its efforts. But in the interests of the NHS as a whole and patients, the RRR scheme if correctly defined will be a significant step in the right direction.
Richard Lodge is a medical negligence partner at Kingsley Napley LLP