Reforming the approach to clinical negligence in the National Health Service (NHS)

By John Tingle

The Department of Health in England  have just published a consultation paper on the Governments proposal to introduce a Rapid Resolution and Redress Scheme (RRR) – a voluntary administrative compensation scheme for families affected by severe avoidable birth injury. Action against Medical Accidents (AvMA) the UK charity for patient safety and justice cautiously welcomes the stated intentions of the scheme but state that more thought needs to be given to the proposals. There needs to be more detail of the scheme and  some serious concerns are expressed.

The case for change

There are central three policy objectives behind the (RRR) scheme:

  • Reducing the number of severe avoidable birth injuries by encouraging a learning culture.
  • Improving the experience of families and clinicians when harm has occurred; and
  • Making more effective use of NHS resources.

In the consultation paper, a leading policy justification for the (RRR) scheme is the success of a Swedish initiative called, ‘The Safe Delivery Care Project’ which shows evidence of a reduction of claims for severe neurological birth injury.

Better and more effective use of scarce NHS resources is a stated aim behind the (RRR) scheme. The consultation paper gives some important context to litigation claims for children born with severe neurological injuries because of medical error. The NHS LA (National Health Service Litigation Authority) which manages all clinical negligence claims for the NHS settles around 100 multi-million-pound maternity cases a year. This roughly equates to two multi-million pound settlements per week for children born with severe neurological injuries caused by clinical error. The consultation paper states that over the past 10 years the size of average awards has risen by around 9% per annum which is well above general inflation and significantly larger than other inflationary indices, such as the general cost of providing care. In terms of the average settlement for a severe neurological birth injury this equates to a value of £6.25m, including costs paid out over the injured person’s lifetime.

The (RRR) scheme  has two stages presently within the consultation.Stage one introduces root cause analysis, standardised, independent investigations, review of potentially avoidable instances of neurological birth injury. Stage two provides for support and compensation for families eligible for administrative compensation.

Key to the (RRR) schemes operation will be the options for the compensation threshold and two are given:

Option A: What could have been done differently.

Option B: What should have been done differently.

Option A applies a higher standard than the current negligence threshold.

Under this test, a given case would be eligible for compensation if harm could have been avoided under optimal clinical practice within the given circumstances, assessed against the standard of a leading clinical expert.” (p.27)

Option B equates to the current reasonable practitioner test in clinical negligence cases.

A twelve-week consultation period is given and the paper was published on 3nd March 2017.Overall the consultation is to be generally welcomed for the sentiments it expresses but it is short on specific detail and this will fundamental in determining its end value and appropriateness.

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