What is the Rapid Resolution and Redress Scheme?
In October 2016, the government announced plans to introduce a Rapid Resolution and Redress Scheme for families of children who suffer severe brain injury. A public consultation has recently closed.
Background
In a twelve month period over the years 2016 - 2017, the total value of claims against the NHS for brain damage to babies during childbirth was £1,921 million for 232 claims, representing an average of over £8,000,000 per claim. As a result, maternity brain injury compensation claims are a significant financial demand on NHS resources.
Furthermore, the settlement of these claims is usually extremely protracted due to the need to assess the impact on the child and their needs over time as they develop. And yet, the children and their families need certainty and financial support from the very early days of the claim.
Clearly, there is a need to improve on these outcomes for the families concerned but also for the NHS to learn from the mistakes which have prompted these claims.
What are the government's proposals?
According to the government website, the aims of the Rapid Resolution and Redress Scheme are:
- Reducing the number of severe avoidable birth injuries by encouraging a learning culture
- Improving the experience of families and clinicians when harm has occurred
- Making more effective use of NHS resources
More specifically, it offers a 'system of independent investigation - with access to ongoing support and compensation for eligible babies'.
Proposals include:
- Early investigation and identification that the injury could have been avoided
- An apology to the families where avoidability has been established
- An up-front payment where avoidability has been established
- On-going assessment of need
- The use of periodical payment orders
It would be a voluntary scheme with claimants retaining the right to pursue a claim through the courts if they choose.
What is the purpose of the consultation?
A public consultation was open from the beginning of March to the end of May, seeking responses from families, clinicians, patient groups, legal organisations and other interested parties as to how the scheme should be run, what would be the eligibility criteria for compensation and how the NHS could learn through the process.
The government received over 200 responses and is due to report on the findings of the consultation in September of this year.
Responses to the proposals
The Society of Clinical Injury Lawyers (SCIL)
SCIL's response to the proposals included the following key points:
- The RRR scheme requires early investigation of any reported incident by a clearly independent and experienced team not drawn from within the relevant or a neighbouring trust, incorporating at least one relevant expert clinician
- Investigators should be aware that the true impact of any damage may not become apparent until several years after the birth and the child's needs may change over time and this should be reflected in ongoing assessment
- Investigations should be commenced shortly after the incident has occurred
- An early apology to the family is very important
- There needs to be a process whereby learning is disseminated nationally
- Affected families should receive a substantial, up-front payment but the proposal that this is likely to be when the child is about 4 years old is rejected as too late. An earlier assessment and payment should be possible
- Families should be able to choose legal representation instead if they wish
The Law Society
Whilst welcoming any improvement in the access to justice and compensation by families who have suffered from avoidable maternity brain injury, the Law Society has made a number of observations including the following:
- Any such scheme should be administered by an independent body, not by the NHS itself
- Families should have access to robust, independent legal advice
- Any scheme should be piloted and assessed thoroughly
The Law Society further observed that many families may continue to choose the litigation route and that it may be preferable to improve existing processes rather than introducing an additional scheme.
Action against Medical Accidents
Peter Walsh, chief executive of AvMA is reported in The Daily Telegraph as saying, in reference to apparent indication that compensation through the RRR scheme would be approximately 90% of current sums, "We can see absolutely no justification for giving families less compensation than if they had gone to court."
Medical Negligence
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