A Rapid Resolution Redress Scheme for Severe Avoidable Birth Injuries

severe avoidable birth injuries

The Department of Health proposes to introduce a rapid resolution redress (RRR) scheme for severe avoidable birth injuries. The consultation started on 2 March 2017 and ends on 26 May 2017.

The RRR is proposed to be an alternative to the current system where a case has to go through the courts. It is designed to be a voluntary scheme. It would only apply to injuries arising out of NHS services in England.

The suggested scheme will be in two stages; stage 1 would be an initial investigation of the potentially avoidable birth injury.

A panel of independent experts would decide whether the incident was eligible to proceed to stage 2.

If a case were to proceed to stage 2, a compensation package would be provided for the individual’s current and future needs.

If a family, on taking legal advice then decide to pursue a claim through the courts, the services under the scheme would be withdrawn. Alternatively, if the family, on taking advice believe that the amount of compensation on offer is unreasonable and not sufficient to cater for their needs, they can withdraw from the scheme and pursue a claim through the courts.

The aim of the scheme is 3-fold.

  • Improving safety within the NHS.
  • Improving the experience of families when things go wrong.
  • Saving costs, making more effective use of NHS resources.

There is a public consultation which will be closed on 26 May 2017.

Comments on the proposals can be submitted in one of three ways:

Data from the NHSLA¹ states that over the last 10 years on average 129 families per year have made successful negligence claims for severe neurological birth injuries in England through the courts. The average settlement according to the NHSLA’s own figures for severe neurological birth injury cases equates to £6.25 million including legal costs. The result is that the number of claims have not declined and that lessons do not appear to have been learned from these cases.

It is hoped that the scheme will move away from a defensive culture to a more open one with substantial costs savings to the NHS.

If a case does proceed to stage 2, any compensation package is likely to involve three elements:

  1. Early payment at around age 4 of £40,000 to £100,000. This is already available through the adversarial system currently in place where higher payments on account can be obtained via the courts.
  2. Periodical payments. These would be subject to review around ages 5, 12 and 18 and they would be much lower than those awards currently made through the courts.
  3. Instead of a lump sum award which can be made via the courts giving families greater control and choice, a greater use will be made by the NHSLA of periodical payments, therefore, limiting access to capital sums and limiting the decisions and choices which are available and on offer to families.

More importantly and more worrying is that the administration of the scheme would be handled by the NHSLA, which is not independent.

The current proposed RRR will not cover areas of the following cases:

  • Stillbirth.
  • Neonatal death.
  • Maternal injuries or maternal deaths.
  • Harm associated with pre-natal and antenatal care.
  • Multiple births.

Unfortunately, if a family does opt to use this scheme, but then find themselves unhappy with the amount or offer of compensation, at the end of the process they would still have to consult with solicitors and essentially start again by pursuing a case in litigation, thus having wasted considerable time and resources.

If you have been affected by any of the issues referred to in this article, please contact Parisa Costigan, head of personal injury and clinical negligence department, Coole Bevis LLP for a free no obligation chat on 01403 224608. or by email parisa.costigan@coolebevisllp.com.

¹NHSLA is the NHS Litigation Authority (the body that represents the NHS in proceedings)