Maternity compensation in the crosshairs

As my colleague Jonathan Bassey has suggested in his Q&A this month, one reason that the legal sector responded so well to the pandemic may be that it is accustomed to almost constant change, reform and adaptation. In no area of legal practice is this perhaps more true than clinical negligence.

Clinical negligence has been a turbulent arena for many years, always having to adapt to government initiatives, always looking ahead to the next potential or proposed reforms. No matter the challenges that have arisen, the profession has always met them, creating new ways of working, helped by innovative insurance products and new funding solutions, all in the cause of protecting access to justice.

A few weeks ago, in an article for the Law Society Gazette, I mentioned a new threat to justice that emerged over the summer in a report from the House of Commons Health and Social Care Select Committee, on the provision of safe maternity care.

Of course, maternity care is the medical field in which there are by far the greatest financial and human costs in mistake and malpractice. It therefore makes perfect sense for the government to focus its attention on improving both the level of care and the mechanisms through which compensation for mistakes can be sought and awarded.

The conclusions of the Select Committee’s report included many sensible recommendations on matters such as training, learning from incidents and data sharing. However, it also included recommendations to compensate families on the basis of NHS provision rather than the cost of private care, and to standardise compensation against the national average wage.

As well as requiring patients who have been injured by the NHS to rely on the same institutions and perhaps even the same staff for the care they need as a result of the original malpractice, these measures seem designed to significantly reduce the compensation that injured patients receive.

It is easy and perhaps populist for politicians to point at a disparity in awards for similar birth injuries and argue that it is inequitable. But any difference will not apply to the whole award, but merely reflect the real costs that families face, for example, for loss of earnings or higher living costs or adaptation costs.

Should the parents of birth-injured child who happen to live in the South East have to uproot their family and move away from their support network to allow them the same value of compensation for their already decimated lives?

The Government’s response to the Select Committee recommendations, which was published at the end of September, didn’t provide much more detail but reiterated its commitment to reforming the clinical negligence system.

In publishing its response, the government launched another, broader consultation on ‘NHS Litigation Reform’ though the four-week window for submission of evidence might suggest that the committee’s assertion that it “…wants to hear your views” is not entirely heartfelt.

Whether the consultation is a genuine attempt to gather views and new ideas or simply a necessary step towards an already planned package of reforms, remains to be seen. However, as APIL advised in the written evidence it submitted to the enquiry, transparency and accountability are the keys to improving patient safety which, in turn, will also reduce not just the financial costs of medical negligence in the NHS, but the human cost too.

That human cost should be at the very heart of any proposed reforms, but the continued reference to the rising financial costs of clinical negligence cases, when there is some evidence that those costs have actually started to fall, might indicate that government motives and priorities lie elsewhere.

As Paul Rumley, chair of the Society of Clinical Injury Lawyers, was quoted in the Gazette, “The inability of the NHS and other health systems to learn from mistakes, in a consistent and blame free culture …has enormous and tragic consequences for patients and their families.”

Reducing that harm and heartache is the surest way to significantly reducing costs.

Disclaimer - all information in this article was correct at time of publishing.