Mum forced to return £330k payment for birth defect mistake


Deborah Mackay

Deborah Mackay, a 33 year old from Clapham in Bedfordshire, has been told she must repay almost half of a £705,000 payout she received after the NHS failed to spot that her unborn son had spina bifida. The health service is demanding she return the money because her son, Calum, died unexpectedly.

Can this be right? Can compensation payments be clawed back like this?


Mackay sued Bedford Hospital NHS Trust after Calum was born with spina bifida. She knew she was at increased risk because of the medicine she was taking for her epilepsy, so she had several specialist scans. The birth defect should have been picked up by them - giving her the choice whether or not to continue with the pregnancy. However, they assured her all was well.

The Mirror reported that The NHS Trust admitted it was at fault and agreed to an out-of-court settlement. The agreement was to pay £705,000 of interim payments, and then when Calum was 10 they would assess a final figure (estimated at £6 million). Mackay spent £450,000 of the money on a specially-adapted home and the rest on caring for her son.

Paid back

Calum was expected to have a normal life expectancy. However, he died suddenly from organ failure at the age of six in November 2011. Three months later Mackay received a letter from the NHS demanding £330,000 should be paid back. Their argument was that the money was for his care, and because he died so young, he does not need it. She told the Daily Mail: "It wasn't enough that I was grieving - I had just lost my son and then they pulled the rug out from under me again."

Mackay has been advised to sell her home to pay the NHS (which would leave her with just £75,000), but she cannot bear to sell the home she shared with her son. She told the Mirror: "Now I have lost him, and now I have to sell our house. It's all I have left of him."

Mackay and her solicitor are in negotiations with the NHS Trust. They face a deadline in July. A spokeswoman for the NHS Litigation Authority told the Daily Mail: 'The NHS Litigation Authority and NHS Bedford Trust appreciate this is a difficult time for Ms Mackay. We also have a responsibility to safeguard public funds, there are no plans currently to force a sale of this property."


Incidents when the NHS has been forced to pay compensation are shockingly common. The most recent figures are for 2011 - when £1.2 billion was paid out in compensation.

Fortunately, however, instances where they have asked for the money back are exceptionally rare. In fact, the occasions when any organisation demands a refund on compensation payments are few and far between.

It can happen where the compensation was subject to certain conditions, such as this case.

It can also happen when court action is ongoing. So, for example, there was the case of a woman in North Queensland was awarded $130,000 in damages after injuring her foot in a bungee competition. The appeal judge ruled that her evidence was confusing and implausible and she was made to pay the money back.

And even more unusually, it can happen when wrongdoing is unearthed. In one strange example in 2010 two women staged a car crash and conned £11,000 in compensation from insurers. Their duplicity was uncovered when one of them lost her job, and her former employer found a string of emails arranging the crash. The women were given suspended jail sentences and tagged, and they were made to pay the money back.

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