Why the NHSLA should not run the new ADR scheme for birth injuries

Sampson: the NHSLA’s culture is defensive and slow

Guest blog by Adam Sampson, the former Chief Legal Ombudsman and now managing partner of DNGG Ltd

In a world where the cost of legal claims against the NHS, already some £1.5bn, is set to increase by a further £1bn simply as a result of the changes to the Ogden discount rate, it is scarcely a surprise that the NHS Litigation Authority (NHSLA) is being encouraged to find alternative methods of settling disputes.

So the news that it is agitating to take ownership of the proposed new birth injuries scheme as the cornerstone of their new commitment to settling disputes by consensus rather than via litigation should not come as a surprise.

But just because the move would suit an institution looking for a new purpose does not make it right for claimants (and their representatives). It has long been accepted that birth injuries should be treated separately from other types of claim.

Over a decade ago, the NHS Redress Act 2006 legislated for an administrative birth injuries scheme, a move which the recent Maternity Review endorsed. Lumping these claims in with the regular NHS litigation is questionable policy.

The Maternity Review made it clear that the birth injuries scheme should be administered by a distinct public body with expertise in medical insurance; it did not recommend NHSLA administering the scheme. Nor is there anything to indicate that the NHSLA is capable of running it.

Not only does the NHSLA not have any real experience and expertise in delivering high-quality ADR, but as countless claimants could tell you, its culture is defensive and slow. Government has made much of the success of similar schemes in other jurisdictions, but forthcoming research by Dr Sonia Macleod of Oxford University indicates that not a single one of those schemes has been sited within a healthcare litigation organisation.

Given that the NHSLA is part of the NHS and its statutory role is to defend the NHS against legal claims, asking claimants to believe that the investigations it has overseen and redress it is proposing are truly independent is a stretch indeed.

The new legal test suggested for the scheme will also be a challenge to an organisation steeped in litigation. Rather than the usual negligence test, it is suggested that investigations will look at “avoidable harm”, as happens in some other schemes and which would broaden both the availability of redress and the quality of institutional learning. Concerns on the part of doctors will also need careful management, if the scheme is to be truly seen to be “no-blame” as the Maternity Review has laid down.

But, above all, it is the claimant view which is vital in all this. It is well known that Jeremy Hunt is determined to press ahead with a scheme which delivers for claimants. That is why the Department of Health has recently issued a consultation, aimed at claimant groups, asking them among other things where the scheme should be sited.

It does not augur well for the proposed rebranding of the NHSLA, to emphasise its commitment to listening to the needs of claimants, that it is not prepared even to wait for the answer before staking its own claim.

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