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NHSLA set for revamp as government eyes move away from litigation for injured babies

Hunt: early settlement of cases

The NHS Litigation Authority is to be renamed NHS Resolution as part of a “radical change” of approach to handling claims, health secretary Jeremy Hunt has announced.

It comes in the wake of government plans for a new administrative compensation scheme for birth injury cases that aims to significantly reduce the amount of litigation that currently takes place.

Speaking in the House of Commons yesterday, Mr Hunt said it was “part of our ambition to make the NHS the safest healthcare system in the world”.

He said: “I can inform the House that the NHS Litigation Authority will radically change its focus from simply defending NHS litigation claims to the early settlement of cases, learning from what goes wrong and the prevention of errors. As part of those changes, it will change its name to NHS Resolution.”

The Department of Health said the move would bring the NHS closer to becoming “the world’s largest learning organisation so when things do go wrong, lessons are learned quickly, shared across the system and ultimately, patient care is improved”.

There is currently no more detail on this, and Linda Millband, national practice lead for clinical negligence at national law firm Thompsons, said it needed to be “more than just another name for the same vastly under-resourced service”.

She continued: “We are all for resolutions but the NHS cannot not pay out when it is negligent – whether that is to patients or to their staff. Call us cynical but we will not be holding our breath for seismic change that really helps those injured by the NHS unless and until the health secretary publishes details of a more proactive protocol for medical negligence and work-related cases.”

Emma Hallinan, director of claims policy and technical at the Medical Protection Society, said: “The NHS’s provision for clinical negligence claims has increased dramatically in recent years, so a fresh and more preventative approach to managing claims is timely, and will hopefully reduce the number of costly court cases.

“The fact remains, however, that last year alone £1.5bn was spent on clinical negligence by the NHS at a time when it is under significant pressure. We desperately need a system which ensures compensation is reasonable for patients who have experienced clinical negligence, but is also affordable to society.

“The case for a whole package of legal reforms which tackle the root of the problem is becoming ever more pressing.”

Earlier this month, foreshadowing this change, the Department of Health issued a consultation on introducing a ‘rapid resolution and redress scheme’ (RRR) for severe, avoidable birth injuries. This would introduce a system of “consistent and independent investigations… along with access to ongoing support and compensation for eligible babies through an administrative scheme”.

It said the main aims were to reduce the number of severe avoidable birth injuries by encouraging a learning culture, improve the experience of families and clinicians when harm has occurred, and make more effective use of NHS resources.

The consultation said: “Evidence tells us that the current system for providing redress for these birth injuries is not working as well as it could. Currently when substandard care occurs during labour and delivery which results in the most severe forms of birth injury (cerebral palsy/brain damage), the only means by which families can secure compensation is through the adversarial and often lengthy process of litigation.

“The average length of time between an incident occurring and an award for compensation being made is 11.5 years. This process takes time because the court has to wait until the injured child’s prognosis is clear in order to decide a full and final compensation settlement.

“This is amplified by the adversarial culture associated with litigation, and adds further uncertainty and stress for the families involved.”

The NHSLA settles around 100 multi-million pound maternity cases a year. Over the past decade, the size of average awards has risen by around 9% per annum; the average settlement for a severe neurological birth injury case equates to a value of £6.25m, including costs paid out over the injured person’s lifetime.

The compensation package for eligible cases under the RRR scheme is likely to involve three elements: an early up-front payment of about £50-100,000 issued around the age of four, periodical payments, and a lump sum award.

Before the early payment, families of babies who are suspected to have been avoidably harmed would receive access to counselling, legal advice, and a case manager to direct them to appropriate state services. There would also be the potential for interim payments where avoidability is established earlier.

Following the early payment, families would progress through the compensation scheme to receive a further lump sum award and periodical payments, calculated in line with need. The lump sum and any periodical payments would be provided on average a year earlier than they would via the court route, the consultation said.

Periodical payments and associated care provision would undergo “a sensitive reassessment when appropriate to ensure they meet ongoing need”. This would be in line with key developmental milestones at around ages 5, 12 and 18. It is proposed that, compared to current court awards, a greater proportion of overall compensation (around 50%) will be made available through periodical payments.

The NHSLA would administer this part of the scheme, and put together a panel of independent experts for each claim, with access to legal support if required.

The consultation said: “It is important to note that this scheme is a voluntary alternative to the tort route, and does not remove a family’s ability to go to court if they were unsatisfied with the decision of the eligibility panel, or any other reason.

“This would therefore provide a route of appeal if a family is unhappy with the panel’s decision. However, any compensation already received by the family under RRR would be off-set against the final court award to prevent double recoverability.”

The impact assessment accompanying the consultation did not really consider the effect of RRR on claimant law firms. It said there were no “direct outcomes that are forced upon legal firms” – as the scheme would be voluntary.

On legal costs more generally, the assessment said: “Those in receipt of compensation from RRR no longer have defence and claimant legal fees that need to be paid as a result of lengthy litigation (note that there will still be an option to receive legal advice under the scheme).”