Faster inquiries proposed where brain injury is suffered at birth

There is a proposal from the government to promise families of children who suffer brain injuries at birth faster investigations into what went wrong and to provide swifter compensation payments.

Ministers apparently wish to overhaul a system which they say families complain that on average means they wait up to 11 years for a final resolution if compensation goes through the court.

This may be true of a minority of these complex brain injury cases, particularly in the hands of non-specialist lawyers. What ministers are not advertising is that there are in fact valid reasons why cases involving children with brain injuries take so long to resolve, not least because some of the child’s disabilities may not manifest themselves, or cannot be measured appropriately until they reach the age of five. However, where cases take a long time to settle (for example because the child is too young to predict what their needs will be), interim payments are sought from the NHSLA along the way to ensure that the injured child’s needs are met in terms of accommodation, care and equipment which arise as a result of the negligence.

The Department of Health proposal for an alternative system of compensation would include a mandatory, independent investigation panel to learn the lessons of what went wrong; this of course is welcome in any situation where mistakes are made. They propose regular payments to help with care costs and personalised counselling, case management and legal advice. The Royal College of Midwives apparently supports the idea, whereas the campaign group Action against Medical Accidents has warned the plans are not well thought through and there need to be greater guarantees about the independence of the new system.

Amanda Cavanagh, a medical injury specialist at Ashtons Legal, comments: “This proposal needs careful detailed thought. How will the regular payments to help with care costs, personalised counselling, case management and legal advice be managed? Who will decide what the payments should be, how will they calculate these payments and “care costs” without proper and full investigations into the child’s needs? Will they expect the parents to be carers as well as parents? The costs of setting up and rolling out this proposal may outweigh any financial savings and time saved, and indeed may also limit the extent of compensation provided to these severely injured children.

“The other thing that needs to be borne in mind is the point at which parents of children who are brain injured at birth choose to seek legal advice. At Ashtons we have handled many cases for families where a child has cerebral palsy and in some of these the parents haven’t even begun to take action until the child was much older and it became apparent that the child would need care when the parents were no longer around to do it themselves.

“Presumably these cases could have an interesting impact on the statistics.”