Be afraid. Be very afraid | Bolt Burdon Kemp Be afraid. Be very afraid | Bolt Burdon Kemp

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Be afraid. Be very afraid

Is NHS Litigation Reform the beginning of the end of “full and fair compensation for all?”

On 28 April 2022, the House of Commons Health and Social Care Committee published its report on NHS litigation reform.  The Committee has concluded that “the system for compensating injured patients in England is not fit for purpose” and proposes wide-ranging reforms.

As a lawyer representing children in claims for compensation for catastrophic brain injuries, often through medical negligence at birth, I fear for the futures not only of my clients, but for all those needlessly injured, if the Committee’s recommendations are implemented.

The report’s recommendations

The report recommends that when a patient is harmed, they or their family should be able to approach an independent administrative body that would investigate their case and determine whether the harm was caused by the care they received and if it was avoidable.   The investigation would take the form of an enquiry.  It would look at the facts of the case, and it would focus on how all parts of the system delivered care to the patient in question.  Should it be found that the patient suffered avoidable harm because of their medical care, they would receive compensation.

However, under the system proposed, the amount of compensation the patient would receive would be savagely cut.   Instead of receiving compensation for the full cost of privately funded care, for example, a patient harmed by medical treatment would receive only the costs necessary to top up care available through the NHS and social care system.   This would force them to rely not only on care provided by the organisation that had failed them in the first place but also on woefully underfunded State-funded care.

The report recommends that, in the first instance, the new Administrative Patient Compensation System (APCS) should focus on obstetric cases which align with the Each Baby Counts criteria[1]

The Association of Personal Injury Lawyers (APIL), responding to the report, warns that “Cutting damages for injured babies whose futures have been destroyed by negligence is completely unacceptable”.  I wholeheartedly agree.

Adding Insult to Injury

From my perspective, as a lawyer acting for babies and young children who have suffered catastrophic brain injuries, often due to medical negligence at birth, it is repugnant to contemplate a proposal that only adds insult to injury.

The children I represent, and their families, face the most enormous challenges every single day when it comes to dealing with statutory services. Whether it is being limited in the number of free nappies a child who suffers double incontinence can have, or being unable to access basic washing and toilet facilities in the home because of the child’s physical disabilities, or having to tolerate the physical discomfort and possible injury caused by equipment such as wheelchairs and splints that are too small because the child is growing and statutory services quite simply cannot keep up, the simple acts of meeting basic needs become struggles for survival.

Every single one of us in our society, is entitled, under our legal system to be compensated if we suffer needless harm.  Our law states that, as a matter of principle, the aim of an award of compensation, or damages, is to put the injured person in the same position as they would have been in had the avoidable harm not occurred.  Babies and children are no exception.  Indeed, under our legal system, babies and children are given extra protection by laws and procedures designed to ensure that vulnerable individuals are not undercompensated.  Where there is a claim that results in the payment of compensation that has been assessed in accordance with this principle of full and fair compensation, the child and the family can move beyond survival mode and begin to forge a new and more hopeful future for themselves, while our over-burdened NHS and social care system are relieved of those additional pressures.   Compensation that forces a family to fight for scarce resources on behalf of their child is no compensation at all.

My focus is on child brain injury claims, especially those involving injuries sustained at birth, but the Committee’s report recommends that, once established for obstetric cases, the APCS should then be expanded to accommodate all patient injury claims made against the NHS in England.  In other words, if Committee’s recommendations are accepted, this important legal principle – that the aim of an award of compensation, or damages, is to put the injured person in the same position as they would have been in had the avoidable harm not occurred – would cease to apply to anyone who applied for compensation under the APCS scheme. This would mean that none of my clients that have suffered catastrophic injuries as a result of a hospital’s failure to, say, spot the neurological signs of stroke or carry out a proper neurological examination, who received compensation under the APCS scheme could afford privately funded therapy.  Instead of regular and specialist neurophysiotherapy, occupational therapy or speech and language therapy from dedicated therapists working together to meet their everyday physical, emotional and cognitive challenges, my clients would be forced to rely on an already exhausted, underpaid and fragmented community service, with limited appointment times and ever changing therapists.  This is just not acceptable.

The Committee believes that “the administrative system should be the mandatory first port of call for injured patients and their families”.  If the option of pursuing clinical negligence cases and seeking redress via litigation remains open, albeit only after exhausting the administrative route, the likelihood is that this will add to the time and costs involved, not reduce them, since patients and families dissatisfied with redress offered under an administrative scheme will choose the litigation route in addition, if only to obtain a second opinion.

Even more concerning to me, as a lawyer dedicated to obtaining full and fair compensation to meet the lifetime care and therapy needs of my young clients, is the report’s recommendation that compensation through the litigation process – not just the administrative scheme – also be savagely cut.  So, even via the litigation route, people who are injured through the medical negligence of others would not be entitled to full and fair compensation but would instead be pressured to rely on NHS care and treatment, when it was NHS care and treatment in the first place that caused the injury.[2]

Once that principle, of full and fair compensation, is undermined for medical negligence claims, who is to say that it will survive for other negligence claims?

[1] Eligible babies under the Each Baby Counts criteria are those born at term (≥37 completed weeks of gestation) following labour that had one of the following outcomes: 1. Intrapartum stillbirth: when the baby was thought to be alive at the start of labour but was born with no signs of life. 2. Early neonatal death: when the baby died within the first week of life (i.e. days 0–6) of any cause. 3. Severe brain injury diagnosed in the first seven days of life.

[2] The Report advocates the repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948 for clinical negligence. This section entitles the injured person to claim compensation via litigation for the cost of private medical treatment even if that treatment could have been provided by the NHS free of charge. If the Report’s recommendation is accepted this would no longer be the case.

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