Amos: families told her adversarial system is “brutal” and “cruel”
The national maternity and neonatal investigation yesterday called for work on an alternative compensation system that would be less adversarial than now.
Baroness Valerie Amos, who chaired the investigation, said the current compensation process can “exacerbate” the trauma suffered by distraught families, who lack the personal strength and financial resources to bring a compensation claim against the NHS.
In her 174-page report, Baroness Amos said there was one common denominator across all the cases the investigation examined – “the feeling of justice denied.”
Families told her that the adversarial system was “brutal” and “cruel”.
“They felt the system was weighted against them, with many families struggling to find solicitors who would take their case while the trust was able to employ senior lawyers at public expense.”
Nine months ago, the government asked the peer to investigate the “systemic issues” that led to preventable deaths and harm in the maternity and neonatal wards at 12 NHS trusts.
More than 450 families shared “heartbreaking cases”.
Baroness Amos said: “Words cannot describe the pain, suffering and trauma I saw and heard time and time again when talking to women and families about their experiences of maternal and neo natal care in England.”
The investigation heard the same thing repeatedly; women and their families being dismissed and not listened to, unacceptable racism and discrimination described as “embedded within the system” and a failure to put safety at the heart of the care.
Acknowledging the “toxic” culture the investigation had exposed, James Murray, the health secretary, accepted the investigation’s recommendation to appoint the UK’s first commissioner for maternity and neonatal care, and said a national action plan would be published in December to overhaul services and drive long-term change.
On the compensation system, the investigation said families that tried to get answers in cases of preventable deaths and avoidable harm such as brain damage during birth face “common issues, leaving them bewildered and angry”.
They reported “a sense that internal investigation teams were ‘marking their own homework’, NHS leaders prioritising reputational protection over learning, and records going missing or being altered”.
The current negligence framework “inevitably” leads NHS Resolution to take a defensive approach.
Baroness Amos referred to no-fault compensation systems in countries such as Sweden, Denmark and New Zealand, while other countries “have compensation schemes that offer a variety of routes for resolution which families can choose from” – in some, “an independent case review is included as part of the process to provide answers to families”.
Some families told the investigation that a no-fault system “would make it harder to get answers” by allowing a trust “to avoid scrutiny and a true understanding of what had gone wrong would never be available”.
The peer acknowledged the work of NHS Resolution to make more use of alternative dispute resolution and in introducing the early notification scheme for the most severe maternity brain injury cases.
“However, we were also told that it can still take up to two years before families find out whether there is going to be an admission of liability.”
Baroness Amos called on the government and the NHS to find a new way of awarding compensation to families.
“We have heard of the damaging impact of the adversarial nature of the compensation system.
“The Department of Health and Social Care, and NHS England must commission and publish a report to examine the benefits and drawbacks of an alternative compensation system for adverse events in maternity and neonatal services.
“This alternative system would aim to promote less adversarial relations between trusts and harmed and/or bereaved families and promote better learning from adverse events.”
She suggested adding this to the work being done by one-time justice minister David Lock KC to advise the government on the rising legal costs of clinical negligence and how to improve patients’ experiences when making claims.
Clinical negligence costs resulting from maternity cases involving brain damage and cerebral palsy have increased by 63% in the last decade to £1.6bn. More than 60% of the £60bn set aside by the NHS to cover negligence claims now relates to maternity cases.
Baroness Amos wrote: “The picture that emerges is not one of isolated failures, but of a system under sustained and compounding pressure – pressure that has built over decades and that no single intervention has been sufficient to address. The emotional and financial consequences of getting things wrong have grown year on year.
“The billions now set aside for maternity litigation are not abstract figures – they represent real harm and trauma to families, that in many cases could and should have been prevented.”
Sharon Allison, chair of the Society of Clinical Injury Lawyers, which gave evidence to the review, backed its findings.
“The most effective way to tackle the rising costs of clinical negligence in maternity services is to learn lessons and prevent future harm.
“Our proposed SCIL Scheme, by focusing on collaboration and avoiding litigation wherever possible, will both lessen the impact on taxpayers and ensure access to justice for women and families who have been harmed.”
Earlier this year, Parliament’s public accounts committee also called on the government to look at the lessons it could learn from no-fault schemes.
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