Rapid resolution and redress scheme: Kennedys responds

Last month, we submitted a response to the Department of Health’s consultation on a rapid resolution and redress scheme for severe avoidable birth injury.

The proposal is for a voluntary administrative compensation scheme (the Scheme) for families affected by severe avoidable birth injury. Use of the scheme would not prevent affected families’ right to litigate.

The main aims of the Scheme are to:

• Reduce the number of severe avoidable birth injuries by encouraging a learning culture.
• Improve the experience of families and clinicians when harm has occurred.
• Make more effective use of NHS resources.

Currently, the only means by which families can secure compensation is through the adversarial and often lengthy process of litigation, where the average time between an incident occurring and a compensation award being made is 11 and a half years.

Kennedys’ response

On the whole, we agreed with the basis of the Scheme and its overarching objectives. The reduction in future incidents is paramount and if such practice can also provide financial savings to the NHS, then we are of the opinion that it should be encouraged.
We confirmed our support to many key elements of the Scheme including:

• The focus on education and learning.
• Early investigation (within 90 days of the incident).
• The issue of early and meaningful apologies and for face-to-face meetings with the families.
• Clarity in terms of what went wrong and the improvements needed.
• Dedicated support for all affected health professionals.
• Reassurance that clinical staff will not be blamed.
• Review of care at five, 12, 18 and — as we suggested — 22 years of age (care reviews are not part of the litigation process).
• Clinical eligibility to be defined using the Royal College of Obstetricians and Gynaecologists definition of avoidable brain injury.
• A pilot of the Scheme to allow for early refinement and to persuade patient bodies that the Scheme can provide substantive and meaningful learning.

In addition to our overriding support, we did offer the following notes of caution and additional suggestions:

• The level of awards and staged payments must be adequate. If the families consider that they will achieve a better result via the court system then the incentive to use this Scheme will be lost.
• Independence, impartiality and transparency will assist in achieving the trust of the families. 
• It should not seek to alter tried and tested ‘reasonable standard’ test, particularly if the families are to have the option to revert to a court process once the investigations have been undertaken. This would ensure a consistent approach to determining compensation.  
• Payments above the suggested initial £100,000 and before the age of four years old may be required in some circumstances.
• While a degree of flexibility is required, additional care review stages should be the exception rather than the rule to allow for uniformity which will lead to improved accuracy on assessments, better collation of comparable data for experts undertaking assessments and greater costs savings.

Industry responses

The Law Society’s response welcomed the proposed Scheme but stressed that a formal litigation path must also be available and that the Scheme must be capable of adequately compensating families. They considered transparency and independence to be paramount, as was access to specialist legal advice throughout the entire process.

Action Against Medical Accidents’ agreed with the Scheme’s objectives but suggested that there was not enough detail provided. It also suggested that the Scheme would not be necessary if investigations were carried out properly in the first instance and if cases were settled earlier.

The Association of Personal Injury Lawyers supported the proposed learning culture but did not think that the Scheme — in its current form — would provide sufficient funds to meet the families’ needs. It welcomed the idea of early investigation and a mechanism for guaranteeing early, upfront payments, but was concerned that ultimately it would be seen as ‘litigation’s poor relative’.

The Medical Defence Union supported the proposal for early investigation of cases and the creation of a ‘case manager’ role to assist families. However, they also urged caution in creating new tests to determine whether financial redress would be paid.

What next?

As the consultation period has closed, the government will consider the responses and publish a public consultation response document. There is no date for a government response at the time of writing — the web page simply says ‘We are analysing your feedback’ — and there is a high probability that recent political events may delay any such response.

Read other items in the Healthcare Brief - June 2017