On Monday 17 October 2016, Jeremy Hunt, the UK Secretary of State for Health, acknowledged in a press release the medico-legal crisis in maternity care. In August 2016 the National Health Service (NHS) Litigation Authority (www.nhsla.com) reported that the annual cost of settling legal claims had reached £1488.5 million pounds ($1816 million; lawyers take 36% of the total). Of the £2896 million claims received in the financial year 2015/16, 42% were for negligence in maternity care: £1216.5 million (with £989.7 million for cerebral palsy cases alone). Compensating claimants now costs about 20% of the maternity budget (about £800 for each birth); however, Hunt allocated just £8 million for multidisciplinary training, which is 20% less than the current maximum award for a single cerebral palsy case (£10 135 511; T versus Kings College Hospital NHS FT High Court 22 January 2015). The Health Secretary ‘will also consult on a new Rapid Resolution and Redress (RRR) scheme to give eligible families a thorough and independent investigation, and 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’. His proposal was foreshadowed by the National Maternity Review, published in February 2016 (www.england.nhs.uk/2016/02/maternity-review-2/). This suggests that ‘Where the harm was caused by acts or omissions related to care during term labour, a financial settlement should be provided to support the baby's care… Such a scheme would pay out for birth injuries without families needing to go to court and prove negligence in a lengthy and difficult process. Removing the threat of individual clinicians being branded negligent would improve the effectiveness of serious incident investigations, and help ensure that similar mistakes were avoided’. However, it is difficult to envisage a system where an individual who makes a serious error of judgment is not in some way held to account or subjected to a practice review. Local investigation of those involved can be hampered by a reluctance to criticise colleagues. Moreover, the problems with this approach were recognised in the second report of the Parliamentary Health Committee almost 25 years ago (Winterton Report, 1992), to which I was an advisor. They opined that ‘no-fault compensation might reduce the number of awards, but would still leave the problem of accountability for mistakes… it would also fail to address the problem of equity, for only a small proportion of longterm handicap can be attributed to medical or midwifery error. Thus even a no-fault system of compensation would only ameliorate the lot of a small fraction of children needing special provision’. They recommended ‘improving education of maternity care givers’ and ‘improving care for disabled children and adults so that multi-million pound settlements are not seen as the only way to ensure their longterm protection’. At present, costs of care are based entirely on care in the private sector. Allowing judges to take into account the available NHS provision would allow considerable reductions in compensation; however, lawyers are probably still a long way from losing their income from mistakes in maternity care. None declared. Completed disclosure of interests form available to view online as supporting information. Linked article This article is comment on by SL Clark, p. 1334 in this issue. To view this mini commentary visit https://doi.org/10.1111/1471-0528.14621. Please note: The publisher is not responsible for the content or functionality of any supporting information supplied by the authors. Any queries (other than missing content) should be directed to the corresponding author for the article.
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Nov 2, 2017
Alistair Quaile 
Open Access