Administrative birth injury claims scheme to start in 2019, says Hunt

DoH to take into account impact of new discount rate

There is “strong support” for the key aims of the government’s planned administrative compensation scheme for birth injury claims and it will hopefully go live in 2019, health secretary Jeremy Hunt has confirmed.

The ‘rapid resolution and redress’ (RRR) scheme forms part of the Department of Health’s (DoH) maternity safety strategy and this week it published a summary of responses to the consultation held earlier in the year, with a pledge to reveal the “final policy option” next spring.

The DoH said it was also considering a proposal that a “new independent ombudsman” should oversee “investigations and determinations of eligibility for compensation and levels and composition of compensation packages”.

Though welcoming some of the principles behind the scheme, which would operate as an alternative to litigation, respondents to the consultation were critical that it did not guarantee access to independent legal advice.

In its response to the consultation, the DoH said: “We are in the process of considering consultation feedback and working with partners to develop a final workable policy proposal for implementing RRR.

“This next stage of policy development includes continued engagement with partners and additional modelling to understand the impact of recent changes such as the change to the personal injury discount rate and alternative policy parameters as suggested through responses to the consultation.”

The DoH said particular areas for consideration included the final scope of the scheme, the most appropriate ‘avoidable harm’ test to use and how payments should be structured.

“It is our aim to undertake additional engagement at pace throughout the remainder of this year and publish a final policy proposal in spring 2018.”

The DoH also said in its response that it would consider a proposal from the Centre for Socio-Legal Studies at the University of Oxford and a former Chief Legal Ombudsman on the establishment of a new independent ombudsman to oversee investigations in terms of eligibility for compensation and determine levels and composition of compensation packages.

The DoH said there were 217 responses to the consultation, almost half of them (47%) from midwives and only 15% from legal professionals.

The consultation questions were not on the merits of setting up the scheme, but on different aspects, such as whether the first significant payment should be made when the child was around four years old and avoidability could be established.

A majority of respondents (82%) said the scheme should be piloted, to make sure it was efficient and effective, and any issues, including “unintended consequences”, were tackled.

The Association of Personal Injury Lawyers said it was still concerned about how the award of damages would operation under the RRR scheme.

President Brett Dixon said: “We support promises of early investigations, apologies, and shared learning in the proposed rapid resolution and redress scheme for severe birth injury, but the approach to damages is crude when compared to the proper assessment of a child’s needs which comes with litigation.

“The original proposed scheme would only pay 90% of an average court settlement. When damages for long-term need must be calculated carefully to meet their purpose, 90% of the average settlement would be far away from the correct level of compensation for most families.

“We are prepared to engage further with the Department of Health to help ensure any scheme is fit for purpose.”

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