The Chief Medical Officer’s (CMO) long awaited report on compensation for clinical negligence claims was published on 30 June. It was the result of two years of deliberation by the CMO and a review committee representing all major stakeholders. It was commissioned as a result of figures published by the National Audit Office in May 2001 that seemed to show a dramatic increase in the costs of compensation for clinical errors. The figures were later challenged and were probably not truly representative, but by then it was too late – the Government announcement had been made and the committee was in situ.
For the past two years, lawyers and organisations representing patients have been waiting with trepidation for this report. There were many questions to be answered. Would the present system be swept away despite wide-ranging procedural changes only a few years ago that have radically reduced the time and costs of these claims? Is there a future for clinical negligence lawyers? Should there be?
The recommendations struggle a little between saving the NHS money and trying to address some concerns about the length and complexity of the present system of compensation. They also need to be seen in the context of the NHS’s future plans and the plethora of new agencies being set up to improve safety and quality of service.
The key areas for change are: better reporting of adverse incidents; proper investigation and explanation of what went wrong and prevention of recurrence; earlier and more widespread use of mediation; specialist training for judges in clinical negligence cases; a redress scheme that will deal internally with investigation and compensation for claims up to £30,000; it may not be necessary to prove fault to obtain compensation and rehabilitation for children with neurological problems arising as a result of incidents at birth; capping of these children’s compensation – general and special damages and periodic payments rather than lump sums; and Legal Services Commission funding to remain, but to be kept under scrutiny and possibly reduced further.
Any right-minded individual would welcome the vision and innovation of these proposals, but do the changes actually reduce the rights of those injured by medical error, putting them in a worse position than those injured through other forms of negligence? It’s a wonderful, almost Utopian, basket of remedies and measures, but as always, the devil is in the detail and the detail is simply not there, nor is the money or resources.
I think there will be better reporting of incidents and risk management as there are several new agencies already tasked with ensuring this happens. As for the rest, I am afraid it seems unlikely to work. The redress scheme will lack independence or outside scrutiny. There is to be a new duty of candour for doctors, but this adds little to the duty to report adverse outcomes that already exists. For any clinical negligence lawyer or staff member working in the NHS, the reality is that candour and openess still need a lot of work, as does incident reporting.
The present complaints system has failed largely due to lack of resouces. It is not clear who in the trusts will have time to undertake these investigations. It might even be the existing NHS Litigation Authority, but is this appropriate? Worse still are the proposals for rehabilitation. There are simply not enough specialists willing to work in the NHS so these services have to be bought at higher rates using compensation. To offer this rehabilitation to potentially far more children is unrealistic unless vast resources are going to be utilised. We would all welcome the latter, but is it likely?
So, where to now for clinical negligence lawyers? I think we should be campaigning hard to ensure that victims of medical accidents are properly and fairly compensated, have access to specialist lawyers, and get the explanation and reassurances that the error will not be repeated.
The lawyers need to change and evolve to meet the challenges ahead. They need to become problem solvers and not the problem. They should actively pursue alternative dispute resolution rather than litigation and seek imaginative settlements and client involvement. We have until 30 October to respond to the CMO report. We need to respond to the report and we also need to respond to change.