In England instances of child birth injury are becoming less frequent with constant medical advancements. However, unfortunate incidents do still occur.

Health Secretary, Jeremy Hunt, has consulted on a “No Fault” Compensation Scheme for babies injured at birth – the Rapid Resolution and Redress Scheme (RRR).

As an alternative to Court Proceedings, parents may voluntarily enter the RRR Scheme. Claims would be assessed within the scheme to determine whether compensation is to be paid out, if so, how much.  This would be done without independent legal advice or court involvement.

The scheme has limited applications and will not be open to stillbirths, neonatal deaths, maternal injury or death, or injuries arising from antenatal complications, excluding many grieving families.

The early consultation suggests that families will receive 90% of the damages they may receive from litigation and help will be provided to meet immediate medical and care needs.  The intention is to reduce the time it takes to investigate and settle a birth injury claim, which is currently around 11.5 years on average.

Another intention of the RRR Scheme is to remove blame and encourage medical staff to speak openly about maternity care failings and learn from mistakes.

A similar Scheme operating in Sweden has reduced serious avoidable birth injuries by around 50% in the last 6 years. The impact in the UK may not be so significant as “Duty of Candour” already exists within the NHS to acknowledge and apologise for mistakes.

The Law Society is cautiously supportive of the “RRR” Scheme but warns that it must preserve access to justice, be transparent and independent.

A key criticism of the current proposals, is the absence of Independent Legal Advice or judicial scrutiny. This could put off many potential applicants, reducing the uptake and intended benefits of the RRR scheme. If it is not used it will not provide the financial savings that are expected and may become unsustainable.

If, after application to the RRR Scheme, families take legal advice and pursue a traditional medical negligence claim, services under the Scheme would be withdrawn leaving their needs unmet. The Association of Personal Injury Lawyers argued this would “pressurise families out of pursuing funds they desperately need for long-term care”, holding families hostage.

The National Maternity Review Report stated “a lower compensation payment combined with the additional benefits to learning, speed…reduced harm and costs, make the Scheme a worthwhile option for families, clinicians and government to seriously consider”. This statement leads one to wonder whether the RRR Scheme is designed to help vulnerable claimants or simply reduce the cost of NHS negligence to the government.

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