6th December 2017

Can we dare to hope that eventually after years of failure lessons might be learnt in the future?

The health secretary Jeremy Hunt has said this week that the NHS in England must do better at learning from mistakes to cut the number of baby deaths and injuries in childbirth in the UK. There are an estimated 1,000 cases each year where babies have unexpectedly died or have been left with severe brain injury. The figure is taken out of nearly 700,000 births, which the health secretary believes shows that the NHS have provided safe care for most. That aside he has pledged that the NHS will learn from its mistakes and has confirmed that a new voluntary compensation scheme for maternity negligence claims should be in place from April 2019.  He believes the new scheme will create a culture where NHS staff can be more open to talking about and learning from their mistakes.

What it the new proposed scheme?

Under the new scheme, parents who believe severe damage to their baby has been caused by medical negligence could join a voluntary “rapid resolution and redress” scheme.

All unexplained cases of serious harm or death will be independently investigated.  Currently it is up to the local hospitals to investigate cases or for the parents to bring clinical negligence claims. The Healthcare Safety Investigations Branch which was formed earlier in 2017 will make the assessments where errors have occurred, their findings will be presented to a panel of legal and medical experts who then will make the decision as to whether any compensation is warranted and arrange for payments to be made to the family. As a part of the proposals announced, the government will also be looking to change the law to allow coroners to investigate all full-term stillbirths. Mr Hunt hopes that the new scheme would help the NHS learn from its mistakes as part of the drive to halve the current rate of stillbirths, deaths and brain injuries by 2025.

Why the change?

The plans come further to an NHS-backed review into deaths where the baby was seemingly healthy during labour found that in 80% of these cases, improvements in care could have prevented the death of that baby. Staffing issues and heavy workloads were highlighted as a key issue within the report. Mr Hunt has stated that there is a shortfall in staff across the whole NHS and that this would be addressed by a major expansion in training places in the coming years but that steps could be taken now to improve the health service in the way it deals with mistakes made.

Mr Hunt aims to change the so called “blame culture” for NHS staff into a “learning culture” and hopes that the move would give parents quick answers and ensure that the lessons learned being shared across the NHS would help curb the bill for settling clinical negligence claims relating to babies who have suffered brain injuries at birth.  He hopes the new scheme will act as an alternative to “costly” litigation. Currently, there is on average two clinical negligence claims per week being settled. Each of these cases costing millions of pounds to cover lifetime care for the babies damaged at birth. The average length of time between the incident occurring and the compensation award being made is 11.5 years as the Court has to wait until the child’s prognosis is clear to decide a final settlement. The aim of the scheme is to assess around 500 cases per year and would vastly reduce the bill of the NHS settling these claims. Data from the NHS Litigation Authority shows that the compensation bill to the NHS for settling these types of claim has been rising. In 2015/2016 it was £509.3 million compared to that of 2014/2015 being £393.2 million.

A consultation was held earlier in 2017 and discussed whether families should be given an early upfront payment, likely to be between £50,000 and £100,000 when avoidability could be established. Almost half of the responses came from midwives and a number of responses from legal professionals. Whilst most supported this, some lawyers felt that these sums were not enough to meet the needs of the victims and their families. The vast majority agreed the scheme should include early investigations by independent professionals.

It is important to note that entering into the voluntary scheme does not void any chances of parents being able to launch their own clinical negligence case if they are unhappy with the voluntary scheme.

What next?

The scheme will be designed and the details refined of how the scheme will work over the coming months. The development will have the aim of improving safety and patients’ experience and will also reduce NHS costs.

Have we heard all of this before?

We have heard the same proposals and promises before when the NHS Litigation Authority was first set up and lessons have not been learned. It is extremely important that the details of the redress scheme are correct and the right levels of support are put in place for the staff who come forward. This issue has currently not been addressed and leaves an area of uncertainty. Should the members of NHS staff who make the mistakes not have access to the correct level of support and services then the scheme will fail to deliver what Mr Hunt has promised in creating a “learning culture” and will essentially resort back to what he describes as the “blame culture” with staff being sceptical about being honest in fear of litigation or job loss.

It is questionable whether the new proposal is a one focused simply on cutting NHS costs. Whilst early investigations, apologies and shared learning can be supported, it appears that the approach of the original proposed scheme is that it would only pay 90% of an average court settlement which would not be the correct level of compensation for most families. The proposed interim payments demonstrate a total lack of understanding of the needs of the children who have been injured and appear to be more an exercise purely to curb the levels of compensation being paid out by the NHS for these types of claim.