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17 March 2014
In the fanfare surrounding the unveiling of the Government's proposals for a new system of handling clinical negligence claims last month - and the accompanying media umbrage about the supposed spiralling costs - one simple point was in danger of being overlooked: will the victim of a medical blunder be any worse off when compared with, for example, a person crippled in a car accident?
The package of reforms under the proposed 'NHS redress scheme', as unveiled at the beginning of the month by the chief medical officer Sir Liam Donaldson in his report 'Making Amends', featured compensation for babies born with severe brain damage and payments of up to £30,000 without litigation for patients whose treatment goes wrong. Another recommendation was to place NHS staff under a "duty of candour", obliging them to inform the patient if errors occur during treatment. (For more details on the scheme, see box, 'The "Making Amends" report'.)
"If you're a patient with the NHS, you have less rights when affected by clinical negligence than a private patient, or indeed anyone injured by negligence in any other social sphere," argues Peter Walsh, the new chief executive at Action For Victims Of Medical Accidents (Avma). "If you're injured in a car accident, there are no restrictions on your access to justice; if you're injured at work there aren't any; but if you happen to be injured by the NHS there's a ceiling put on what you can get."
Other critics put it more bluntly. Rosamund Rhodes-Kemp, head of clinical negligence at Russell Jones & Walker, deals with a large number of children's claims. "It doesn't matter much to them whether they're like what they're like because of a doctor's or a midwife's error rather than being run over by a bus," she says. "But they could end up with diddly squat by comparison."
A child who suffered brain damage in a road traffic accident could expect in the region of £150,000 general damages plus a lump sum of perhaps £3m-£4m; whereas under the new scheme, such a person could stand to receive a maximum of £50,000, plus £100,000 a year for ongoing needs, to be provided by the NHS, which is stretched to breaking point.
A 'cautious welcome' best sums up the view of most claimant lawyers, reflecting a pragmatic acceptance of some fairly unpleasant changes that have been a long time in the coming. Or as Rhodes-Kemp puts it: "I think lawyers have brought a lot of this upon themselves in the way that we've dealt with these cases for a long time now. The biggest change that lawyers are going to have to make is to themselves. We have to start showing that we can become problem solvers and not litigators."
The Government flagged up the possibility of fixed-rate payments for victims of clinical negligence in a white paper on reforming the system in July 2001. The scene was conveniently set almost immediately by a controversial National Audit Office report, which claimed that the NHS faced claims for clinical negligence of no less than £4.4bn.
There was much consternation at the research, with the Association of Personal Injury Lawyers (Apil), for example, arguing that it was widely misinterpreted in the press and was "not giving the whole picture". The figure assumed that every claim investigated was won by a claimant and paid in full, despite the fact that in reality most cases fail to get off the ground.
Shortly after came Professor Ian Kennedy's report into the deaths of babies undergoing heart operations at Bristol Royal Infirmary, where he concluded that the "culture of blame" was a major barrier to the openness required for such events to be
reported. "The system of clinical negligence is part of the culture of blame. It should be abolished," he argued.
Now Donaldson has similarly accused the current system of operating in "a climate of blame, acrimony and confrontation". "[We] know that cases take too long to settle, that more is spent on legal costs than on compensation in many cases, and
that many complainants are left fundamentally dissatisfied for what are really very simple reasons," he said. "For many, it's not the size of any compensation that matters so much as an apology, an explanation and, vitally, evidence that something is being done to minimise the risk of a similar problem happening in the future."
The two limbs of the redress scheme are clearly aimed at keeping costs down. As the 'Making Amends' report explains, brain damage at birth represents 5 per cent of claims but 60 per cent of the clinical negligence budget, and the legal costs of settling claims exceeds the money paid to the victim in the majority of claims under £45,000.
Despite an understandable suspicion that much of the paper is costs-driven, its emphasis on mediation, specialist training for judges, better reporting of adverse incidents and effective rehabilitation services for victims goes down well with claimants and their lawyers.
"If you look at the 'vision' the paper has set out, well, it could have been written by Avma, and so, in theory at least, the ethos and intentions of the paper reflect the approach we've advocated," says Walsh. "Where we do have a problem, though, is the net effect of the recommendations."
The group's chief concern under the £30,000 scheme is access to independent legal advice. "It appears that the scheme only envisages that you're able to have professional legal advice at the point where you're made an offer," Walsh argues. "But you don't know what questions to ask at that stage and, frankly, the average person would end up barking up the wrong tree."
Apil and the Law Society are also concerned that patients will end up being shunted into a scheme with no room for disinterested professional advice. "We've always said that it's important for injured patients to be able to retain their right to litigate if they wish, and the proposals allow for this," says David Marshall, Apil chair and senior partner at London firm Anthony Gold Lerman & Muirhead. "It's vital, though, that patients are given the freedom to consider any offer with an independent lawyer who can help to ensure the patient receives the package which is most suitable."
"The Government says victims will keep the right to litigate," argues Law Society president Carolyn Kirby. "But it's not enough to simply say the right is there, it has to be made practically possible for them to go to court if they feel their claim hasn't been resolved or appropriately handled by the redress scheme. We have to safeguard against people being refused legal aid or a fair hearing in court because an NHS redress system exists."
A mandatory non-litigation scheme will only increase costs for the NHS, contends Paul Balen, a clinical negligence expert at Nottingham firm Freethcartwright. "They might say it isn't mandatory, but you can bet your bottom dollar the first thing that will happen is that all legal aid is withdrawn, on the basis that you have to go through the scheme," he says. "If you go through the system and it doesn't work - and in our experience it's unlikely to - you're increasing costs at the front end and the back end."
Critics say that the devil is in the detail and there is plenty of that to be filled in over the coming months. "There are many question marks," reflects John Pickering, a clinical negligence partner at Sheffield firm Irwin Mitchell. "For example, what would be the eligibility criteria for the £30,000 scheme? Is it going to be the same as the current negligence test, the 'Bolam'-based approach, which relates to reasonable standards of care?"
On the scheme for severely neurologically impaired babies, Pickering asks whether it will be limited to impairments related to "the birthing process" or whether it will be drawn wider. The disability organisation Scope fears that difficulties in establishing causation of cerebral palsy will mean the majority of children developing the condition in the future are excluded. Richard Parnell, head of research and public policy at the group, reckons that research into the cause of cerebral palsy reveals that only between 3 per cent and 14 per cent of cases are caused by birth trauma. "So in practice, this scheme will create a very clear two-tiered system of care for disabled children and adults, regardless of need," he argues.
Claimant lawyers will rejoice at the ditching of the much-vaunted 'no fault' system, which they argue would lead to less clinical accountability. It was kicked into touch on the grounds that such a system could fuel a compensation culture (initial estimates suggested the annual bill could reach £4bn), be very expensive to run and would not improve 'processes for learning'. Having said that, the scheme for neurologically damaged babies where impairment is birth-related appears to be a 'no fault' scheme in all but name, and despite the chief medical officer's best intentions has been widely described as such in the media.
"They've got themselves in a real muddle over this," comments Avma's Walsh. "To me it's straightforward. If you've been damaged as a result of negligence in anything, you should be entitled to compensation; but if you have a condition or disability that's come about not through negligence but fate or bad luck, it's not compensation you need, but good-quality care from the NHS."
Claimant lawyers wholeheartedly welcome the introduction of a duty of candour requiring clinicians and health service managers to inform patients about actions that have resulted in harm.
"It has to be imposed and it's extraordinary that the 'caring profession' hitherto hasn't accepted that such a duty exists," comments Freethcartwright's Paul Balen. "It exists for us lawyers and we aren't renowned for being a caring profession."
However, the 'duty' as proposed is so heavily prescribed that it could well be counterproductive. For example, the paper envisages "exemption from disciplinary action" for those who report accidents. Documents would also have legal privilege. "That's a nonsense," adds Balen. "You either have a duty of candour or you don't."
Aside from technical issues, there are underlying concerns about the erosion of independent legal advice that would leave patients at the mercy of, as Balen puts it, the "medical mafia". The idea is that a new body will replace the NHS Litigation Authority to administer the redress scheme. "Effectively the redress scheme creates the NHS as prosecutor, judge and jury," Balen says.
The 'Making Amends' report
There are 19 recommendations, including:
An NHS redress scheme should be introduced to provide investigations when things go wrong, remedial treatment, rehabilitation and care where needed, explanations and apologies, and financial compensation in certain circumstances.
The NHS redress scheme should encompass care and compensation for severely neurologically impaired babies, including those with severe cerebral palsy where their impairment was birth-related and other criteria are fulfilled.
A national body, building on the work of the NHS Litigation Authority, should oversee the NHS redress scheme and manage the financial compensation element at a national level.
Patients would be eligible for payments for serious shortcomings in NHS care if harm could have been avoided and if the adverse outcome was not the natural progression of the disease. Payment would be made by a local NHS trust for the cost of care leading to harm and by a national body for amounts up to £30,000. Compensation would be provided in cash or kind according to the severity of the impairment and would comprise: a managed care package; monthly payments for costs of care outside the care package (up to £100,000); one-off lump sum payments for home adaptations and equipment (up to £50,000); and an initial payment for pain, suffering and any loss of amenity (capped at £50,000).
Subject to evaluation after a reasonable period, consideration should be given to extending the scheme to a higher monetary threshold and to primary care settings.
The right to pursue litigation would not be removed for patients or families who choose not to apply for packages of care and payment under the NHS redress scheme. However, patients accepting a package under the scheme would not subsequently be able to litigate for the same injury through the courts.
A duty of candour should be introduced, along with exemption from disciplinary action when reporting incidents with a view to improving patient safety.
Documents and information collected for identifying adverse events should be protected from disclosure in court, in keeping with moves in other countries to promote openness in reporting errors.
Where a claimant is seeking legal aid to pursue a claim for clinical negligence, the Legal Services Commission should take into account whether or not the case had already been pursued through the NHS redress scheme.
Mediation should be seriously considered before litigation for the majority of claims that do not fall within the proposed NHS redress scheme and are being dealt with under court proceedings (as at present).