Don’t “railroad” families of brain-damaged babies through new compensation scheme, government told

Specialist lawyers question whether Rapid Resolution and Redress’ scheme will deliver fewer injuries and lower costs

Families reeling from the devastating impact of being told that their new-born baby may be brain damaged because of an NHS mistake must not be “railroaded” through a proposed government scheme to speed up their claims for compensation, leading London law firm Hodge Jones & Allen has warned.

It also cautioned that the scheme may not deliver the goals of fewer injuries in the first place and lower costs to the NHS – indeed, it might actually cost more, the firm said in its response to the Department of Health consultation on a ‘Rapid Resolution and Redress’ scheme for severe avoidable birth injury.

Hodge Jones & Allen emphasised that the scheme has to be independently administered, and families must have access to independent support and legal advice throughout.

While the aims of the scheme – which also looks to reduce the need for litigation – 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”, the response said.

The response outlined concerns that insufficient independence and oversight were built into the scheme. It would be “completely inappropriate” to press ahead with the government’s assertion that the NHS Resolution (the new name for the NHS Litigation Authority) should administer the scheme if families are to have any trust or buy in to 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, the Court of Protection should be involved in managing the funds. “Regardless of the fact that this is a voluntary scheme, the claimants involved will be protected parties under the law, and there are no safeguards built into the scheme at present in respect of this.”

Hodge Jones & Allen said it was concerned that one of the key assumptions underlying the scheme is as that the number of avoidable incidents will fall and so in turn will costs.

However, evidence from a similar scheme in Sweden does not support this. “We are of the view that the introduction of this scheme has the potential to cost the Department of Health more in the long term. Those with weaker claims will go through the scheme in addition to those who have stronger claims who will litigate in order to achieve 100% 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.”

The response said positive features include early apologies – “Very often, such apologies mean more to victims of medical negligence than compensation” – and early upfront payments, although they would need to be far higher than the suggested figure of £50-£100,000 to help families deal with the child’s immediate needs, such as putting a care regime in place, purchasing equipment, and arranging suitable housing.

Agata Usewicz, head of medical negligence at Hodge Jones & Allen, says: “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 Department of Health 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.”

Ends

For further information, please contact:
Kerry Jack at Black Letter Communications
kerry.jack@blacklettercommunications.co.uk
020 3567 1208

Notes for Editors

Hodge Jones & Allen

• Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its managing partner is Patrick Allen, recently awarded a lifetime achievement award by Solicitors Journal.
• The clinical negligence team comprises six partners, two associates and five solicitors, several of whom are Law Society Panel members and APIL accredited. The team also has the benefit of extensive medical expertise provided by a number of former healthcare professionals. The team is independently accredited by Headway, Spinal Injuries Association and the Child Brain Injury Trust.
• For almost 40 years, Hodge Jones & Allen has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
• The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
• In 2016, the firm launched Hearing their voices – a campaign to raise awareness and build conversations around the issues and the injustices we might all face.