Re-evaluating the approach to NHS litigation—seeking redress for severe avoidable injuries

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Bernadette McGhie - Enable LawBernadette McGhie, Executive Director in the Medical Negligence team at Enable Law, was recently interviewed by LexisNexis. With kind permission, the full interview is reproduced here:

Personal Injury analysis: It was recently announced that the NHS Litigation Authority (NHSLA) is to be renamed NHS Resolution, as part of a revamp and a ‘radical change’ of approach to handling claims. A consultation will be held on introducing a ‘rapid resolution and redress scheme’ (RRR) for severe, avoidable birth injuries. Bernadette McGhie, executive director at Enable Law, explains the background to these developments and considers the potential implications of the consultation exercise.

Original News

New redress scheme for babies injured by birth negligence, LNB News 02/03/2017 93

A voluntary administrative compensation scheme for families affected by birth injuries—in the form of the RRR scheme—is being put forward by the Department of Health (DoH). The RRR scheme aims to introduce a system of consistent and independent investigations for all instances where there may be severe avoidable birth injury, and would include ongoing support and compensation for eligible babies. Views are sought by DoH on the RRR scheme by 26 May 2017.

What is the background to the consultation and revamp?

There has been much publicity and concern about the rising cost of NHS litigation particularly in the context of concerns over NHS funding sustainability but this is not a straightforward issue. There is a rising demand for NHS services generally due to increases in population and a marked change in the demographic with an older population, often with comorbidities and dementia, which leads to an increase in demand on social care while the government has systematically cut much needed funding for social care services. Care that would and should be provided in the community is being provided by the NHS, draining resources from acute care.
In this context, it is not surprising if there has been an increase in errors in medical care and therefore an increase in claims against the NHS. In addition, cutbacks in community services for brain injured children, for example speech and language therapy and physiotherapy, also lead to an increase in the cost of claims because these therapies need to be funded privately.

What are the main points of the consultation?

The consultation provides a recognition that the current adversarial system creates unnecessary costs and delays in the resolution of negligence claims. There is also acknowledgement that there is insufficient learning from errors. Clinical negligence lawyers on both sides will be only too aware that we see the same errors repeated and often in the same trusts and even involving the same clinicians. No information has been provided in the consultation so far as to how the NHS will learn from its mistakes or whether there will be any sanctions for failing to do so.
This proposal under consultation is an RRR scheme for severe avoidable injuries and in particular birth hypoxia injuries leading to cerebral palsy. The RRR scheme proposed would provide an independent investigation with access to support and compensation for eligible babies through an NHS administered scheme. This is a voluntary scheme and families would be able to have access to court-based solutions at any stage. The emphasis is said to be on increasing a learning culture and improving the experience of families and clinicians when harm has occurred. It is easy for us to forget that a damaged baby not only has horrendous implications for the baby and their families but also for all those who have been involved in the care leading up to the injuries. No one sets out to injure a baby and I suspect that the staff involved does not receive sufficient support both in terms of addressing their shortfall in expertise and improving their skills for the future or their own emotional support. The consultation also seeks to promote a more effective use of resources in the future. It is proposed that there would be more rapid progress in the early stages of the claim with early interim payments on account of damages in the region of £50,000–£100,000. This would be used to provide much needed therapeutic and other services not readily available elsewhere.

What are the practical implications?

The consultation seeks a more collaborative approach to clinical dispute resolution on a voluntary basis but there is no clear indication as to who will administer the scheme and how families can be confident that it will be wholly independent. The suggestion is that the NHSLA would administer the scheme and put together a panel of independent experts. How can the panel of independent experts be independent if they are appointed by the tortfeasor? A change of name from the NHSLA, which suggests a dispute mentality, to NHS Resolve is to set the tone of the new approach. If the NHS ethos changes from the current one of defending some claims even when they are perhaps indefensible from the outset, that in itself would be a significant improvement both in the experience of the family but also in reducing legal costs. Even better if this can be translated across to all claims and not just those that fall within the remit of this scheme.

More information is needed on the proposed learning from mistakes and prevention of future mistakes. There is no clear identification of the need to ensure appropriate resourcing for the NHS or to ensure that staff training is given priority both in terms of identifying quality training but also in terms of funding for the release of key staff to attend training sessions. My experience, as a member of Baby Lifeline’s multi professional advisory panel, of discussions with the NHS reveals a reluctance on the part of the NHS executive to take ownership of the responsibility for staff training in acute areas such as labour ward emergencies and cardiotocography (CTG) monitoring. There must surely be a link between the quality and professional standards of care and the availability and quality of training.

There is a suggestion that RRR will speed up the settlement of birth injury claims but there needs to be a note of caution here. Long term needs are not necessarily apparent in a child’s early years which is why early settlement of these claims is not necessarily advisable. However, the earlier additional supportive therapies can be provided then surely the better the outcome for the child and therefore this is to be welcomed.

It is not clear whether it is proposed that the much needed therapies and support will be provided by the NHS or funded privately. The proposed access to counselling, legal advice and case management to direct families to state services sounds sensible but there are already insufficient state services—and what of the needs of those children who have need of those services due to non-negligent injuries? There is no reference to any additional funding for those services.

This scheme raises further questions. If there is to be a new age in compensating victims of medical negligence we should also be heralding in a new age of honesty and openness. We have the duty of candour but have we seen the impact of this yet? Are NHS staff willing to come forward when there are concerns about their own or colleague’s shortcomings? Should there be a requirement to do so? Personally I believe there should be. It is in everyone’s interest—why should NHS staff who are dedicated and highly professional be let down by the lack of resourcing or the poor supervision and performance of others?

It will be interesting to see whether there will be a knock-on effect for other health claims for example against GPs and private doctors. If this scheme is a success then I would like to think so.
I really hope that there is a genuine motivation to prevent injury from clinical negligence and to improve the outcome for those who suffer injury but my concern is that the motivation may be purely cost cutting without actually following through and directing the funds saved to improve services.

What are the broader issues?

There is an increasing movement towards demands for an independent body to oversee NHS funding and long term planning. I refer in particular to the Parliamentary Select Committee report from Lord Patel which is supported by heads of the various professional bodies and the King’s Fund. The NHS is too important to be at the mercy of politicians who in the past have tinkered with short term plans which simply change when the next administration comes in without allowing any of the plans to properly bed in.

The impact of cutbacks in social care is impacting on the way in which the NHS can use its resources. We have to accept that with an aging population and fewer stay at home carers, community-based social care is increasingly important and needs to be adequately funded. At some point in our lives this is likely to be in everyone’s personal interest. The integration of health and social care is long overdue.

There is a need for both parties in litigation to adopt a more collaborative approach and litigators on both sides really need to be considering this at every stage instead of simply going through the litigation process without really considering the true objectives for the patient/client.

There is no point in simply compensating for errors in care if you do not identify the cause and educate/train staff to prevent them from occurring again.

I firmly believe that the duty of candour should be followed without impunity. Staff should be able to say when they truly believe that care has not been appropriate or that errors have occurred and this means whistleblowing without fearing retribution in any form from colleagues and management.

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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