The Government has announced plans to introduce a new fast-track compensation scheme for children left suffering brain damage as a result of medical error at the time of their birth.
Full details of the scheme have yet to be provided but it aims to encourage hospitals to learn from their mistakes and avoid repeating those mistakes in the future. It is understood that there will be a consultation and it is perhaps premature to comment until the fine details have been announced. However a few important points can be made.
The amount of compensation
The amounts payable have not been announced but the Government has referred to the conclusions of a report by Baroness Cumberlege which make it clear that lower awards are anticipated. In her report, she proposed a scheme with “capped amounts of damages” in conjunction with “generous social security provisions”. Baroness Cumberlege’s report suggested that “a lower compensation payment combined with the additional benefits to learning, speed of redress, reduced harm and costs make the scheme a worthwhile option for families, clinicians and Government to seriously consider.”
The amounts currently awarded in birth injury claims by the courts reflect the enormous impact on these families and the amount of money required to provide them with the lifetime care and support they require, so if the scheme does result in lower awards, then it is likely that some families will not be able to fund the care and support they need.
A simplified compensation scheme
It has been said that the scheme should not prevent families from pursuing claims for compensation through the courts as they do now – this should be welcomed as it will mitigate fears about the amounts of compensation awarded under the simplified scheme.
However it is possible that the scheme will be introduced as a first step that families have to go through, perhaps before becoming entitled to public funding (legal aid) for more traditional compensation claims. The risk with this is that some families might be discouraged from obtaining proper advice on the merits of pursuing a higher value claim or put under undue pressure to accept the lesser amounts payable under the simplified scheme.
Who can claim?
Another aspect of Baroness Cumberlege’s report which has also been hinted at in some of the press announcements is that the scheme might not require findings of negligence. Her report suggests that it would simply be necessary to show that the harm was the probable consequence of the treatment provided or not provided during birth. It may also be extended to cases of stillbirth, neonatal death and maternal death. The detail will need looking at but if this results in more families receiving increased amounts to meet their increased needs, this should be welcomed.
Speeding up payments of compensation
As noted, much was made of the idea of speed of redress. Jeremy Hunt said that these claims take on average eleven and a half years to settle. This figure is almost certainly misleading: in many of these cases, the liability aspects of the claim are settled much earlier. At that stage initial payments can be made to meet the family’s immediate and medium term needs. However, depending on the child’s age and injuries, it may not be until he or she is older that a proper assessment of their long term needs can be made. The courts, which have to approve any settlements on behalf of children, will usually refuse to do so until they are at an age when a reasonable assessment can be made.
Learning from mistakes
As noted above, the scheme is linked to the idea of helping the NHS learn from its mistakes. The suggestion is that healthcare professionals are reluctant to discuss incidents that have gone wrong through fear of the impact on their professional reputation (and their job), the reputational impact on the organisation, and the fear of litigation.
It is not obvious from what has been announced so far how the scheme will help this. Nevertheless the Cumberlege report suggests that such a scheme is a critical part of a framework to improve the effectiveness of learning alongside other initiatives such as:
- improving the quality of serious incident investigations;.
- more effective obstetric emergencies training;
- emphasising the duty of candour with a recommendation that families are fully informed throughout the process.
We would all surely welcome anything that will reduce these mistakes and any barriers to learning from mistakes should be analysed very carefully. Whether the presence of the scheme itself will encourage a new culture of openness among the medical profession remains to be seen, particularly if the right to make a claim for compensation for negligence remains. It is already worrying that some of the press coverage has suggested that investigations will remain private (and inaccessible to the child’s family or their lawyers). This seems to fly in the face of the importance of the duty of candour emphasised by Baroness Cumberlege (and recently enshrined in legislation).
Another aim of the proposal is to reduce costs. Again it is difficult to see how the simplified compensation scheme itself will lead to reduced costs if it results in more families receiving compensation (ie not just those that can prove negligence) and if the right to claim through the courts is retained.
Savings are only likely if the scheme diverts significant numbers of those that would have a valid claim based on negligent treatment away from claiming in the traditional way. Families may be tempted to choose the simplified scheme with lower amount instead of pursuing a riskier and lengthier claim for the compensation required to cover their lifetime needs and losses. There might also be costs savings if the simplified scheme is used as a necessary first step, a hurdle, that must be overcome before a full compensation claim is pursued - in other words if the right to claim compensation is made harder. This has not been suggested so far but it would not be a surprise if this is part of the reform.
Interestingly, the news reports suggest that Jeremy Hunt referred to a scheme in Sweden (upon which the simplified compensation scheme is based) as halving the number of avoidable birth injuries since the scheme was introduced. In the Cumberlege report, it says that the Swedish model resulted in a 50% reduction in serious birth injury claims over a 6-7 year period. There is a very important difference.
Reducing the numbers of avoidable birth injuries would of course result in big savings under both reformed and unreformed schemes. This is what Baroness Cumberlege’s report was aimed at addressing and if this is what the reforms are really aimed at, they should be welcomed.