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Is the new birth injury claims scheme a mark of progress or a step backwards?

The Department of Health launched their Safer Maternity Care scheme back in October, which aims to help reach the government’s rather ambitious target of halving the amount of stillbirths, maternal and neonatal deaths and brain injuries during childbirth by the year 2030.

The Safer Maternity Care action plan sets out the measures that will be put in place to make NHS maternity care safer in the UK, and includes extra funding for maternity safety training as well as new initiatives to help improve the level of care.

Also included is a plan for the Rapid Resolution and Redress (RRR) scheme, with the government planning to utilise such a scheme for ‘cases where “avoidable harm” has occurred during the labour or delivery process’. The RRR part of the Safer Maternity Care scheme states that it will investigate ‘how to change the litigation culture, which can prevent openness and transparency, by taking views on a new voluntary compensation scheme as an alternative to costly legal processes’.

As always, legal practitioners on the front-line of handling medical negligence claims on behalf of Claimants are wary of any government attempt to ‘tackle’ the so-called ‘litigation culture’. Regardless of this aspect, though, there are some areas of the RRR proposals that lawyers would welcome.

As medical and clinical negligence lawyers who deal with birth injury and death know, a compensation payout is never the driving factor behind bereaved families pursuing a claim. Many are looking for a full investigation and explanation, so if an RRR scheme were to enable this to happen in more timely fashion this would be very welcome.

However, if the proposal would be for a ‘no fault’ RRR programme then this could deprive bereaved families of the chance to achieve acknowledgement and accountability of what went wrong during the birth.

A more streamlined claims process would also offer a costs saving (to the NHS and to Claimants) – especially in cases where the injury is severe but the compensation payout is expected to be modest. This, however, would depend on whether the participants of the RRR scheme are able to realistically value a claim and reach a fair settlement without any legal input.

This problem is most important in claims that involve children with severe brain injuries. In a lot of these cases it can take years before the full extent of the damage to the child (both physical and mental) can be adequately assessed. A fair compensation payout amount can therefore not be paid, so a quick settlement via an RRR scheme would be inappropriate.

Perhaps the most fundamental difficulty with such a scheme is the balance between the need for a quick and cost-effective resolution and the desire for a detailed investigation into the negligence and the compensation payout requires.

If the government proposes a truly independent, transparent and voluntary RRR scheme then these difficulties may not be relevant. If not, thought, it is unlikely that bereaved families will be satisfied with the process.

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