The Health Secretary, Jeremy Hunt, has launched a consultation on a voluntary scheme to settle claims of parents whose children are injured at birth. The scheme is intended to provide a quicker resolution to complaints whilst allowing medical professionals to learn from the events. The proposal bears similarities to the Scottish “No-blame redress scheme”, whose consultation period ended in August 2016. How do the English proposals compare to the Scottish consultation, and do either really pass muster?
The NHS in England and Wales spent more than £500m in 2015/16 on resolving legal complaints. The aim is that the new scheme would cut that while providing a quicker resolution for professionals and patients. Somewhat ironically Jeremy Hunt blamed front-line medical staff for indulging in a “blame culture” when things go wrong. This leads to a climate of fear which prevents transparency and openness. The courts, he says, should be the last resort.
The proposals are as an alternative to litigation as the first step. A claim would be assessed by independent investigators who would question NHS staff and parents, as well as looking at the medical records. Their results would be passed to a panel of medical and legal experts who would decide if compensation was warranted.
There is no information, as yet, as to whether parents unhappy with the result could litigate anyway. Under the Scottish proposals, the right to litigate would remain regardless of whether compensation was given.
There are also no details as to the test that the independent panel would apply. In Scotland, the proposals centre on the concept of “avoidability”: could the harm have been avoided by the use of reasonable care?
We have previously warned that the Scottish proposals will not prevent litigation, and may in fact increase litigation costs. On the limited information available, it does not seem that the English system will achieve that either. The scheme is also voluntary, and its success depends upon how many health boards sign up to it.
Those who suffer medical injury should be compensated quickly and fairly. The purpose of litigation is to compensate where a breach of duty has caused loss. Promoting a system which compensates more widely for mistakes has the potential to increase public appetite for compensation. At the same time, a formal redress scheme is unlikely to reduce the blame culture – it just moves it to a different forum. Nothing in these proposals would prevent a parallel referral to the GMC.
Any proposal that would reduce protracted litigation and unnecessary costs would be welcomed. But once again this target has been missed. A formal redress scheme does not preclude litigation. It will often merely delay it, and costs could well end up being higher. If governments north and south of the border are serious about reducing the length and cost of litigation, they should focus their energies on making the court systems more efficient in dealing with them.