Our thoughts on the Rapid Resolution and Redress scheme for birth injuries

31st October 2016 Clinical Negligence

The government has recently proposed new scheme to compensate children who have been injured by its negligence at birth. The 'Rapid Resolution and Redress Scheme' is said to aim to settle birth injury claims quickly and without the need for legal action while also enabling NHS staff to speak more openly when mistakes have been made without the fear of court action being taken against them. The government suggests this will promote a culture of honesty that has been so lacking in the NHS and enable lessons to be learned so that the number of children harmed will reduce.

On the face of it this is a very positive step for the NHS which has justifiably earned a reputation for putting patients and families through a traumatic time after causing devastating injuries such as cerebral palsy. It often drags out these cases unnecessarily, denying any wrongdoing, despite evidence to the contrary, only to make a full admission of negligence before the case goes to court. The current culture is one of 'deny, defend, delay'. This causes immeasurable distress to the families and for such cases to be resolved at a much earlier stage would obviously help. Furthermore anything that can be done to reduce the number of future incidents that occur is to be welcomed.

However, as ever, the devil is in the detail and the detail of this scheme will be absolutely crucial or families could lose out, both by not being able to get to the bottom of matters and not securing the compensation needed, leading them to suffer more emotional distress in the long-term. Solicitors specialising in clinical negligence such as the team at JMW have many years of experience of obtaining the best possible outcome for children who have suffered brain injuries at birth. This includes securing very significant compensation settlements to cover the cost of their care. Would the NHS have the same commitment to the child when it has a vested interest in its own finances and reputation?

My first concern would be that cases would not be investigated properly and families would not be given the whole story about what went wrong. Birth injuries to children are some of the most sensitive and devastating cases we handle at JMW. Often what drives families to instruct solicitors is the poor response they have had from the hospital involved. It is not just about money, it is about getting answers about what happened to their child and for someone to say sorry. When we manage to obtain that, after much hard work, it is an extremely emotional time and it means a great deal to the families. Are families without a specialist fighting for them going to obtain the answers they so desperately want?

Families of children I have acted for have used the existing NHS complaints system, which is meant to be open and transparent and provide answers. However the families have been fobbed off and been told that there were no errors in care or that the injuries were 'one of those things'. It is often is not until they have enlisted our help and we have obtained evidence and started proceedings in court that any failures in care are eventually admitted.

Secondly, the suggestion seems to be that staff are reluctant to admit to mistakes, but if this is the case, that is due to the culture in the NHS, and this has nothing to do with court proceedings. In fact, the starting of court proceedings is a last resort by families and lawyers who have presented evidence to the trust involved and given them often many months to respond. They often deny any wrongdoing forcing families to start formal legal proceedings. In many cases liability is not accepted until after proceedings have been started, or indeed are almost at trial.

A further concern is that children with cerebral palsy who have very severe disabilities could be given a lump sum compensation settlement up front that may be attractive to parents who are naive to the full extent of their child's life-long needs. When a baby is first diagnosed with brain damage it is impossible to gauge how it will affect them years down the line with any degree of accuracy. In most cases children have to be aged at least 7-8 before their long-term prognosis is known; sometimes they need to be a lot older. Currently compensation is calculated in great detail on the basis of expert evidence, and where the sum is agreed between the parties there is an additional layer of protection in that the award has to be approved by the court.

It would be a terrible injustice if a child severely injured at birth due to lack of care did not obtain the full amount they are entitled to, and that solicitors like myself and others in the JMW medical negligence team, work so hard to obtain. The life-long care of a child with cerebral palsy often runs into many millions of pounds. Anything less than this could make certain aspects unaffordable for families, negatively affecting their quality of life and putting them under extreme pressure. Any settlement offered must be fair and in the best interests of the child.

The details of the scheme and will need very close analysis.

In the meantime it will be interesting to see if there is any shift in the current culture of 'deny, defend, delay'.
You can read more about the Rapid Resolution and Redress Scheme on the BBC website.

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Eddie Jones is a Partner and Head of Department located in Manchesterin our Clinical Negligence department

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