Simon Elliman considers a proposed new scheme to compensate babies who suffer severe injury during childbirth, and analyses the likely impacts should it be implemented.
I was interested to read the Department of Health’s recent consultation (published on 2 March 2017) about a possible new scheme to provide “Rapid Resolution and Redress” to babies born with severe and avoidable injury sustained at the time of delivery. The purpose is said to be to create a culture of early investigation and nationally shared learning following such incidents, and also to allow the injured child and his/her family to access support at an earlier stage and to receive financial recompense more swiftly than is usually possible via the litigation process.
‘Rapid Resolution and Redress’
A two-stage process is proposed. Stage 1 would identify cases of potentially avoidable instances of neurological birth injury (essentially brain injury), which would be subject to a standardised, independent investigation. At present such investigations do take place, but normally this happens only within the Trust where the incident took place, and without any mechanism to share learning between Trusts. The proposed system would involve an independent investigation, perhaps conducted by another Trust, and would feed into a nationwide analysis of data to improve future performance nationally.
Stage 2 of the process would involve the provision of early counselling and support to affected families, as well as a compensation package, comprised of an early up-front payment, Periodical Payments on an annual basis, and a lump sum award. Periodical Payments might be made “in kind”, with services co-ordinated through a case manager, although a cash alternative would remain available. The “early” up-front payment would be likely to be made when the child was about four years of age.
Who would qualify?
There are different criteria for Stage 1 and Stage 2. To qualify for Stage 1 a baby would have to have been born at term (37 weeks or more) and satisfy one of the following three conditions:
An investigation would be triggered by the fulfilment of these criteria.
To trigger Stage 2, two different tests are suggested. One, the “Reasonable Care” test, is a very similar standard to that applied at present in litigation. The other option, the “Experienced Specialist” test, is wider, and would allow more injured babies to be compensated than is presently the case. It simply requires that harm could have been avoided under optimal clinical practice – definitely an easier test to satisfy than the present Bolam test which applies to clinical negligence litigation.
A voluntary alternative to litigation
The scheme is proposed as a voluntary alternative to pursuing a clinical negligence claim, not as a replacement for such litigation. It would be possible to opt-out of the scheme and simply litigate, or to try to obtain compensation through the scheme and to litigate later if the scheme did not produce the desired outcome.
Would it help brain-injured babies and their families?
It is estimated by the DOH that approximately 100 multi-million pound birth injury cases are settled each year. The scheme would not widen access to justice for brain-injured babies, unless the wider “Experienced Specialist” test were adopted; it is likely that a similar number of children would be compensated. Those choosing to remain within the scheme would undoubtedly receive significantly lower compensation under the scheme than they would if they pursued litigation.
It would be beneficial if genuinely early compensation was made available to families, but the suggestion that such a first “early” payment would not occur until age 4 does not seem in tune with such an aim. Early access to support and guidance in accessing benefits and other state assistance would be a helpful side-product of such a scheme; it is certainly the case in my experience that many families do struggle with such issues in the early months and years, especially when coming to terms with their baby’s brain injury.
The greatest benefit of what is proposed, in my view, would be the creation of a routine independent investigation in such cases, and perhaps even more importantly, the sharing of knowledge on a national basis – the ability of the NHS to start learning systemically from its mistakes.
Any parent of a child with a brain injury sustained at or near the time of birth will go on being best served by consulting experienced birth injury solicitors to ensure that their child’s financial future is properly secured, even if a scheme of this nature is implemented. However, there are certainly benefits to be derived from some aspects of these proposals, and it is to be hoped that the best of them are implemented in due course.
Please get in touch if you wish to discuss the proposals, or any other query about claims for injuries sustained during birth.