Shahram Sharghy examines the Safer Maternity Care & RRR (Rapid Resolution and Redress)

News | Tue 18th Oct, 2016

Safer Maternity Care & RRR (Rapid Resolution and Redress) – Can it be administered fairly?

Introduction

The Department of Health (‘DoH’) has announced an action plan for ‘Safer Maternity Care’ (‘SMC’). Its aim is simple – to dramatically improve the safety of maternity care in the NHS. As a concept/aim it is of course to be welcomed – but as ever the devil is in the detail.

Alongside the SMC action plan, the DoH also announced a consultation on a new Rapid Resolution and Redress (‘RRR’) scheme. The aim of the RRR scheme is to investigate and learn lessons from incidents during births and in cases where harm was avoidable, the scheme will offer what is said to be ‘timely access to financial support’ without the need for families to launch formal legal process. This is said to benefit families who, on average, wait 11 ½ years for the resolution of their claim. Again a positive development for families of severely disabled children – if fair representation and compensation is offered.

SMC Explained

The new measures are aimed as providing resources for Trusts to improve their approach to maternity safety. £8 million has been earmarked for multi-disciplinary training which works out at roughly £40,000 for each Trust in England. Firstly, this is not a lot of money when compared with the NHS annual deficit of over a billion pounds. Secondly, £40,000 per Trust is highly unlikely to go very far or last very long.

Mistakes are said to be capable of being acknowledged and learned from under this action plan ‘openly and transparently’. This is against the backdrop of the duty of candour which was introduced recently without much success due to the deeply entrenched attitude within the NHS that to be honest and open about mistakes is to admit fault which is unacceptable in the context of impending litigation.

The SMC action plan also includes:

  • A £250,000 maternity safety innovation fund to help create and pilot new ideas for improving maternity care, like the successful PROMPT scheme pioneered by Professor Tim Draycott in Southmead, which has some of the lowest child mortality rates in Europe.
  • Publishing new maternity ratings for every Clinical Commissioning Group (CCG) across the NHS to improve transparency, raise standards and give families better information about the quality of local maternity services (a sort of league table).
  • A new national Maternal and Neonatal Health Quality Improvement Programme for all Trusts to exchange ideas and best practice – a similar scheme in Scotland was said to have been linked to a 19% decrease in stillbirths over a 3 year period.
  • A consultation to develop a ‘safe space’ to allow clinicians to speak openly about things that go wrong without fear that information they disclose may be used against them in Court or at Professional Misconduct Hearings.
  • the Healthcare Safety Investigation Branch, modelled on the highly successful Air Accident Investigation Branch, which will be up and running from April 2017.

Time will tell how successful the SMC action plan will be, but if at least some of the plan is successfully implemented across the NHS in England, it will lead to many more lives being saved and more children protected against serious harm during birth.

The RRR Scheme

There are over 500 maternity/birth related incidents per year in England. That number has sadly not been declining despite advances in medical knowledge, skill and technology. Under the RRR scheme which is being currently consulted on, ‘eligible’ families would be given the option to join an alternative system of compensation that offers support and regular payments without the need to bring a claim through the Courts. However, it is not clear what the quality/quantity of the support offered would be. For example, it is said that the support would include counselling, case management and legal advice but it is not clear whether this will be limited in scope and cost or based on the child/families’ needs? The same uncertainty applies to the concept of ‘regular payments’, are these means tested? And will they be capped?

On more practical significance, who makes the determination of the sum the child or family are to receive in payment and/or in support? Will this person/body be independent on the DoH/NHS? What evidence will be obtained/considered? If the DoH is to make a success of this scheme, it must be able to answer these questions satisfactorily in order to encourage families to engage with the scheme rather than litigate in Court.

A similar scheme operating in Sweden is said to have reduced serious avoidable birth injuries by around 50% in the last 6 to 7 years. It would be wonderful if this could be the case in England but it must be remembered that unlike Sweden, we do not have the social security system or services that can cope with the complex needs of severely disabled children or guarantee continuity of such service.

Whilst the DoH consultation on the RRR scheme is to be broadly welcomed, it must ensure that severely disabled children and their families are not short-changed. Clearly a well-run scheme is in everyone’s interest because it would identify promptly when treatment has caused avoidable harm, offer prompt and reasonable compensation and care package without distracting families with long-running litigation.

Were compensation and support under the scheme to be capped, the scheme will not get off the ground. A cap fails to consider each child’s needs and respond fairly and proportionately to them. Life-long treatment and support services are not cheap and cannot always be sourced within the NHS or the local authority. The saving and benefit of the scheme over litigation for the NHS lies in the speed of resolution and the huge savings on cost rather than short-changing severely disabled children and their families.

Summary

Whilst the action plan and scheme are to be welcomed, it is the author’s belief that they must meet some basic standards in order to succeed:

  • It must have the child and his/her family at the heart of the scheme.
  • It must be sufficiently independent, robust and draw on expertise so as to be able to investigate and determine whether cases meet the criteria for compensation.
  • It should award compensation based on actual needs rather than a ‘capped’ amount or arbitrary assessment.
  • It must guarantee ongoing (including life-long) access to the services that the child and his/her family need, whether from the State or via private providers.
  • The family must have access to specialist legal and medical advice to empower them in the investigation and determination of their case.
  • It is also imperative that families retain their civil right to resort to legal action if they need to and to provide them with a process to independently challenge any determination.

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