Families will be held 'hostage' by 'crude' birth injury scheme

A 'crude' redress scheme for medical negligence claims will hold families 'hostage' and 'railroad' them out of pursuing compensation for the long-term care of injured and brain-damaged babies, lawyers have warned.

Criticism of the government's plans come from claimant lawyers responding to the Department of Health's consultation, which closes tomorrow (26 May), on a voluntary 'rapid resolution and redress scheme' that aims to compensate babies injured during childbirth following failures in care.

Launching his 'Safer Maternity Care' action plan last year, the secretary of state for health, Jeremy Hunt MP, said transparency would be improved by ending the 'blame culture' within the health service. Lawyers have reacted with scepticism to the proposals.

'While we support promises of early investigations, apologies, and shared learning in the scheme, the approach to damages is crude when compared to the proper assessment of a child's needs which comes with litigation,' said Brett Dixon, president of the Association of Personal Injury Lawyers.

Under government plans, the RRR scheme will pay 90 per cent of an average court settlement, which, Dixon argued, 'would be far away from the correct level of compensation for most families'.

'Parents will be expected to attend initial meetings about their baby's injuries without any independent advice or support. If they change their minds later and opt to pursue compensation through the courts, rehabilitation and therapies already in place will be withdrawn,' explained Dixon.

'The scheme will apply a factory-style process to dealing with injured children, putting their futures on a metaphorical conveyor belt. And once parents have bought into the scheme they will be held hostage by the terms.'

Also responding to the consultation, Hodge Jones & Allen emphasised that the scheme must be independently administered and families allowed access to independent legal advice.

The firm said that while the aims of the scheme are commendable, 'the proposals as drafted do not contain sufficient detail or reasoning for us to be confident that scheme in its current format will achieve its goals'.

HJA's response outlined concerns that insufficient independence and oversight were built into the scheme and that it would be 'completely inappropriate' to press ahead with the government's assertion that NHS Resolution (formerly the NHS Litigation Authority) should administer it.

'In the event that the family came out of the scheme, and decided to litigate, the NHSLA would be on the other side, which would present a conflict of interest. There also needs to be a mechanism by which families can appeal the decision made within the scheme.'

Further, in addition to a case manager being appointed to work with the family, HJA suggested that the Court of Protection have a role in managing the funds as a safeguard.

The firm added that the scheme has the potential to cost the DoH more in the long term, as those with stronger claims will continue to litigate to recover 100 per cent compensation.

'There will be increased costs from providing compensation greater than the universal state offer to an increased number of people, and savings from fees on reduced litigation are likely to be eclipsed by the cost of administering the scheme.'

Agata Usewicz, head of medical negligence at HJA, said: 'We support any initiative that makes it easier for families to receive the support and compensation they need, and there are positive features in what the DoH has proposed.

'However, it requires a lot more thought if it is to deliver its laudable aims, never forgetting that there must be no erosion of access to justice for these families. Independent legal advice should be available to the families from the outset and throughout the process.

'It is vital that any scheme is first piloted, and a full impact assessment undertaken, to assess the impact of any reduction in harm, and the extent of any costs savings.'

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD