Law Society warns of lack of legal advice in redress scheme for birth injuries

The Law Society has told the Department of Health that its proposed rapid resolution and redress (RRR) scheme will fail to deliver its intended result of fewer severe avoidable birth injuries.

It said the scheme would not bring about the improved learning culture expected within the NHS and that enhancing existing processes would deliver a better outcome at less cost.

The RRR seeks to foster alternatives to litigation in a system in which errors would lead to learning on how to avoid these in future.

But Chancery Lane said in its response: “We support the principles of a scheme that seeks to deliver fair outcomes for patients and aims to learn lessons to prevent future harm.

“However…it does not seem that the proposals, as currently set out, are generally likely to deliver greater benefits for victims and their families than the outcomes achieved through litigation.”

A lack of detail and legal scrutiny in the scheme could mean that claimants would continue to use litigation to seek redress, it said.

“There is a distinct absence of appropriate lawyer involvement throughout both stages of the scheme, which could result in a restriction of initial access to specialist legal advice, unless it was actively sought by the families,” the response noted.

“Families often need the experience and expertise of lawyers to get the right result in these complex cases, especially if they are in a highly vulnerable and emotional state. They are frequently unable to access justice without neutral and expert legal advice, and limiting lawyers' involvement in the process will prevent families receiving the support they need.”

The Society said a strong uptake of the RRR could be achieved only if outcomes match those of litigated cases.

“Currently, there is scarce incentive for a strong case to go through the scheme, particularly when damages are estimated to be approximately 90% of a litigated settlement,” it said.

If the RRR proceeded it should be administered independently of the National Health Service Litigation Authority, the Society argued.

The department’s consultation said the RRR would be designed to avoid involving bereaved families in “adversarial and often lengthy process of litigation”, in which the average period between an incident and a compensation award was 11.5 years.