Voluntary Scheme For Still-Birth and Brain-Damaged Babies

I have represented the families of children who have been brain damaged at birth for over 20 years. Their motivation for making a claim is to give their child what every parent wants for their children, a good quality of life, a happy life, safety and the security of knowing that their child will be OK when they have gone.

The law in this country gives people the right to claim damages if injury is caused by someone else’s negligence. Hospitals are not immune, nor should they be. No doctor can be criticised in court unless the court finds that he or she has fallen below a reasonably competent standard of care. That is not a high hurdle for the hospital to clear.

The law also requires that, in so far as possible, damages put the injured person in the position they would have been in but for the negligence. Sadly, of course, that is never possible where a baby suffers life-changing brain damage. In such cases, the law will compensate and get as close to that outcome as possible; so, for example, if the child cannot walk, it will provide life-long costs of wheelchairs and adapted vehicles, if the child requires physiotherapy to prevent further, painful and debilitating deformities, the law will provide for those costs to be met by those responsible for the injury.

Jeremy Hunt’s announcement today of a new voluntary compensation scheme for parents whose babies are damaged at birth is said to have the dual purpose of making hospital staff more willing to be open about their errors and take steps to improve, and of speeding up claims for families. He is quoted as saying:

“We make it very difficult for doctors and midwives and nurses, when things go wrong, to do the one thing they really want to do more than anything else, which is to learn from their mistakes so that they can spread those lessons across the whole NHS”.
I struggle to see how this will make any difference to the attitudes of staff. We have always in my experience had staff who are open about mistakes and those that are not. Why should a voluntary scheme that still permits families to sue make any difference to that? In addition, we already have a Duty of Candour – why is yet another scheme needed to persuade hospital staff to do what my profession requires me to do, that is immediately to self-report if I make an error or receive any sort of complaint?

As to speeding up claims, it is utter nonsense for Jeremy Hunt to state that the average claim on behalf of a baby takes 11½ years. It is scaremongering families when they are at their most vulnerable. The only circumstance in which a claim may take this long is if it is in the hands of non-specialist solicitors or if the child has to reach a certain maturity before their life-long needs can properly be assessed.

The real aim of this policy is to cut costs. On my past experience of various schemes introduced or mooted by government, it is inconceivable that, if a family chooses the voluntary scheme, they will be compensated as they would if they pursued a legal claim, and I await the details with some interest.

It is very important for families to appreciate this, for they could be enticed by the promises of rapid resolution and fair treatment, only to find that a few years later there is no money left to meet their child’s needs. I always say to my client’s families if they have guilt about pursuing a claim that they are doing it for their child who cannot do it for themselves. When thinking about entering into this voluntary scheme, it should not be the families’ interests at the forefront, but those of the child. The interests of the child are not served by taking shortcuts, but must be best served by ensuring that the child recovers what he or she is entitled to in law. I suggest government should concentrate their efforts on solving the real problems in the NHS rather than, yet again, attempting to interfere with a family’s right to turn to law.