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James Bell discusses his Brain Injury Compensation case involving a young boy

By Principal Lawyer, Clinical Negligence

In a recent case I acted for a young boy who was born with very severe brain damage. Tragically he died a short time after his birth. The parents then instructed me to pursue a Brain Injury Compensation Claim against the hospital.

During the course of the disclosure process it became apparent that certain statements had been made which were simply untrue. The original medical records were obtained and subjected to forensic analysis. Forensic analysis included ESDA tests and ink analysis.

The results of those investigations caused my clients to lodge a complaint with the NMC requesting that the conduct of one particular midwife be examined with a view to a possible prosecution.

The NMC investigated matters by taking statements from the family. I also disclosed our supportive medico-legal reports to the NMC.

Many months later we received notification that the NMC was not going to take any action against the named midwife.

By that stage the parents’ Brain Injury Compensation Claim against the NHS Trust had concluded.

Over the following year I then attempted to find out the reasons as to why the prosecution by the NMC had not proceeded. My client and I were advised that we were not entitled to know this information and the disclosure of such information would be contrary to various exemptions they relied upon contained in the Data Protection Act and the Freedom of Information Act.

I have now received a final determination from the Information Commissioner's Office which states that neither I nor my client are entitled to know the reasons for the NMC not pursuing the complaint against the midwife.

In my opinion justice has been done behind closed doors and neither I nor my clients have any idea as to what evidence was reviewed by the NMC and whether there had been a fair and equitable process.

Both my client and I are expected simply to trust that the NMC has done its job in an appropriate fashion.

In theory my client could judicially review the NMC and allege that the failure to prosecute the midwife concerned in this case was unreasonable. However she is unable to even consider commencing judicial review proceedings as she has no information whatsoever as to the decision making process of the NMC.

Catch 22 - as Joseph Heller said “The best catch there is”.

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