Is the new birth injuries compensation scheme a good idea?

On Monday 17th October 2016 I was somewhat surprised by the announcement from Health Secretary Jeremy Hunt for a new “Rapid Resolution and Redress Scheme” for birth injury cases, intended to settle claims more quickly and to allow medical staff to speak openly about maternity care failings and to learn from mistakes. But will it work?

The scheme has been announced on the back of apparent increases in costs of birth injury claims, however the stated aims of the new scheme which is voluntary are:

• To settle claims more quickly, out of Court;
• To get away from a “blame culture”;
• It will seek to learn from mistakes and therefore drive down the number of birth injury claims.

This all sounds good doesn’t it? Except for…

• The story being published against a background of inaccurate figures as to the costs of claims, misses the point – this is not about lawyers and their costs, it is about injured children and ensuring they are properly compensated and that lessons are learned so that tragedies are not repeated;
• There is no real detail around this proposal, and the stated consultation has not yet been published – it is more likely that this is linked to the Government’s current drive to impose fixed fees for medical negligence claims which is due to be published shortly;
• The Labour Government of the 1990s looked at a similar scheme – and decided not to proceed with it on the basis that it would be too expensive to run and wouldn’t in fact result in open learning from events – it is not clear how this scheme would overcome those previous concerns;
• It is thought that the scheme wouldn’t allow families to purchase the support they need, e.g. privately funded care and therapy. This is the whole reason why families pursue claims, given the shortfalls in State provision currently following funding cuts. In my experience it is unlikely that families would be willing to accept less than the full compensation they can obtain currently via the Courts;
• Taking time to settle the case properly, can be for good and appropriate reasons, for example to see how a child is developing before deciding what help they need and so to ensure that they have a full support package for life in place. It is difficult to see how those issues and delays would not exist under this scheme;
• Coupled with this announcement is funding for training to improve the safety of maternity care. However, the funding being offered is inadequate to cover appropriate training across the country – this could indicate that funding for this scheme will also be similarly limited, in which case it is probably doomed to failure from the start.

The Department of Health would be better off focusing upon how to reduce negligence in the NHS to increase patient safety and so reduce claims – the fact that these claims remain stubbornly high, in a £100 billion plus per annum taxpayer-funded NHS, is the real scandal here.

So what should we take from this?

The first thing is that any initiative should be based upon objective and correct facts and figures. Unfortunately, this announcement is based upon figures from the Government’s own NHS Litigation Authority, which is being rather disingenuous about how they present the figures for the costs of medical negligence claims.

Even if that is to be left aside, the question remains why this proposal and why now? The fact that the Government wishes to impose fixed fees for medical negligence claims, and thereby limit its own exposure to claims, cannot be a coincidence.

The lack of detail for such an important announcement, is also telling – experience dictates that if the Government makes policy announcements, and fills in the detail later, it can be a recipe for disaster.

That brain damaged children need to be compensated as quickly as possible, is not going to be disputed by anyone. However an inadequately funded scheme, which does not provide full and appropriate compensation to that child, is never going to get off the ground. It probably misses the real issue in any event – if the NHS can simply focus upon increasing patient safety and so reduce claims, they reduce their financial exposure both to payments of compensation and lawyers’ costs. That really is the one thing everyone can agree to support.