Examination of Witnesses (Questions 40-59)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
40. How did that figure of 700 old cases compare with the previous rate of progress on old cases?
(Mr Orchard) The difference was because they were specific to clinical negligence. We have a process which operates across the whole of the civil legal aid scheme which attempts to make sure that our records are as up to date as they possibly could be. The thing about this was that it was specifically clinical negligence.
41. What happened was that in the period between the publication of the report and your fortunate gap in time before appearing before us you managed to make your record look a little more respectable between the two of you. I would suggest that what we should do is invite annual visits from this group of witnesses for each of the next three years to see whether we can get rid of the backlog almost entirely. It is worth considering when we are making our recommendations. Did the Department monitor the extent to which the backlog was being dealt with?
(Mr Crisp) We have a regular review process with the NHS Litigation Authority and we look across the whole range of objectives.
42. Did the Department not spot that there were no targets, that there were these deficiencies which I have already listed? Or did they not bother to look?
(Mr Crisp) There is a slightly separate issue around targets, which Mr Orchard has already talked about: to what extent should we be doing two things? One is pursuing every claim which is not being responded to at the moment, where people have disappeared and not been in contact with us. Mr Walker has made the point that in those cases we do not actually write them off, we keep them on our books but wait for people to come back to us if they are a very significant time.
43. Do you receive complaints from MPs or from the public that people who have taken legal action against any branch of a service find difficulty in getting medical appointments or even getting onto doctors' lists? There have been some complaints that people who have taken legal action subsequently find it difficult to get appointments, for example at hospital, or even to get onto GPs' lists.
(Mr Crisp) I am sure we must have had such complaints.
44. I am sure you have.
(Mr Crisp) I have not actually seen any personally.
45. I should imagine most of us who have been here any length of time will have come across examples of this. This is in effect depriving people of access to the Health Service, is it not? What happens if a person is in such a situation? What happens to ensure they do get the medical treatment they are entitled to?
(Mr Crisp) Clearly if they are entitled to it, they are entitled to it. It depends on the circumstances you are talking about and whether you are talking about access to an appointment or to a doctor within primary care or whether you are talking to somebody within a hospital. In both of those cases we have procedures for following up precisely those complaints and have responsibilities to find appropriate treatment for people where that is happening. I hope when you have brought a complaint like that to our attention we have been able to follow it up, explain what is going.
46. Do you keep any records of the number of such cases and how they were remedied?
(Mr Crisp) I am not sure I could identify centrally the number of complaints because most complaints of that sort will actually be directed at hospitals. As part of their clinical governance arrangements individual hospitals will be looking at complaints. They will be looking at patterns in complaints. We will expect them to look at patterns in complaints. We have set up something called the Commission for Health Improvement to look at how people handle quality issues within hospitals. They too will be looking at those sorts of records. We have a method for doing that and identifying whether that is going on.
47. Sir Hayden, as the Department which is head of our judicial system here, I assume your Department would consider with some alarm a situation in which people who had sought and found justice were then possibly being precluded from their rights within the Health Service. Have you heard of these cases at all?
(Sir Hayden Phillips) No, I have not, but both of us would take the view that was unacceptable.
48. Have you never ever come across it?
(Sir Hayden Phillips) No, I have not. Cases of that sort have not, as far as I know, been put to my Department, but I can check that.
49. Some doctors claim that in fact it is their insurers who create problems for them if they take on people who have already entered into claims against the Health Service and indeed if they have had a case found against them their premiums are increased. Is this not something the Lord Chancellor's Department would be interested in knowing about?
(Sir Hayden Phillips) Yes, it would. It is something which, if there proves to be any consistent pattern to this, is of serious concern.
50. Just to give us some idea of scale, what is the highest settlement which has ever been made?
(Mr Walker) Just over £4 million.
51. What sort of case would it have been? I do not want to go into any detail.
(Mr Walker) I shall not break any confidences; it is relatively easy to share it with you. That is becoming a benchmark in terms of the schedules we are now receiving from claimants' solicitors for children with a longish life expectancy and substantial care costs ahead of them. It is really a multiplication factor of having 25, 30, possibly 40 years of life ahead of them and £100,000 perhaps of care costs and education costs and the like.
52. One of you made a rather staggering point that the settlement damages are increasing in value at about three to four times the rate of inflation. What do you put that down to?
(Mr Walker) A number of factors. If I bore you with detail, please stop me. A case called Wells v. Wells three years ago changed the discount rate which applies to the calculation of future loss. That has again been reduced recently under the Damages Act by the Lord Chancellor. A case called Heil v. Rankin in which the claimants' solicitors were acting on the recommendations of the Law Commission and sought to increase general damages massively. We were successful in holding the line to some extent but nevertheless general damages did increase in some cases by up to one third. Those factors multiplied by the fact that the major element in future care claims is labour, whether it be education, carers, therapist, whatever it may be, and those costs are rising faster than inflation. It is elementary arithmetic, I am afraid.
53. I was fascinated as a Celt to notice that in Wales the average time from claim to payment of damages was two and a half years compared with the average of over eight years in England.
(Mr Walker) I am glad you raised that.
54. What are we doing right that you got wrong or what are you doing right that we are getting wrong?
(Mr Walker) What we are both doing right is managing claims in a very different fashion to the claims which were reported on in this report. We would argue that the equivalent figure in this report is 1.6 years as shown in one of the diagrams for the Clinical Negligence Scheme for Trusts. We would argue that is a more direct comparison. It is the scheme which relates to events which have occurred in more recent years, post 1 April 1995.
55. Outside cerebral palsy cases what is the longest case you have or have had to settle?
56. Yet you still did not give top priority to clearing the backlog having found a case like that.
(Mr Walker) Forgive me, I did not say we did not give priority to it.
57. You quoted other priorities.
(Mr Walker) Yes. We cannot ignore the priorities imposed by the courts. The bailiffs will come round to the hospital and remove the beds.
58. It seems to me that the whole system is chaotic and desperately needs an overhaul. We have thousands more claiming. We have millions of pounds of compensation being put aside. We have long waiting times before any decisions are made or conclusions reached. Perhaps the whole system should be scrapped and we should start again from scratch. The Bristol University inquiry virtually recommended that. Are you considering it?
(Mr Crisp) That is one of the origins of why we have set up the CMO working group. It was a particular recommendation of the Bristol inquiry that we did that, that we really did a proper in-depth look at the whole issue of clinical negligence and that is precisely what we are doing with the CMO's group. We have had more than one impetus to do that, not just the NAO report but also this. Having said that there are some clear things which this report brings out about how we have been improving the system over recent years, including the establishment of the NHS Litigation Authority five or six years ago in order for us to manage this much more professionally.
59. We all received a letter from a Dr Anthony Barton. I do not know him from Adam. I should just like to read out what he says in his letter. He say, "Victims of clinical negligence are rightly entitled to compensation;" we all agree about that, "there must be affordable access to justice." We all agree with that. "Most cases are legally aided and most cases fail. The legal aid system (available only to a minority) is fundamentally flawed: 1. Funding is granted on the advice of the applicant's lawyer; the system is inherently biased, creating perverse incentives for unmeritorious cases to be pursued. This is amply borne out by the low success rates of these cases". I looked up the figure and it is something like 24 per cent. Then he goes on, "2. The usual `loser pays' rule of litigation does not apply to the legally aided claimant who enjoys costs protection; the claimant is in a no lose position and the health service defendant is in a no win position. Cases may be settled irrespective of merit in order to avoid irrecoverable legal costs (especially in low value claims). The system is inherently unfair. The problems of clinical negligence litigation are inextricably linked to the flaws of the legal aid system". I read the report and he is absolutely right. He is absolutely right that it is chaotic.
(Mr Orchard) He is not right any more because you need to understand from the beginning that the success figure you quote is probably right but you start at the wrong point. What he is comparing is the number of cases where we give funding for investigative help. Investigative help is an absolutely essential precursor to making sensible decisions about the prospects of success and cost/benefit. You cannot make a judgement without getting the medical records, having them looked at by a medical expert. Quite properly the majority of cases are dropped at that stage because upon disclosure of the information good quality lawyers will say to the client that they just cannot take it any further. What the true judgement should be is the cases which go beyond that and how far they get and how many of those win. There the numbers are much closer to two thirds being successful either through settlement or after trial. That puts it in a different light. The other thing which is important is that under these individual case contracts there is a degree of risk sharing between ourselves and the lawyers. If the lawyer wins a case, he probably gets, either through the courts or through negotiation, something like £120 or £140 per hour, perhaps even more in appropriate cases. If they lose, under our contracts they get £70 per hour. There is a significant amount of risk sharing going on.
2 Ref Q 48. Back
3 Note by witness: I can confirm that no such cases have been found. Back
4 Note by witness: The C&AG's Report does not record any figure for the average time from claim to settlement for claims under the Clinical Negligence Scheme for Trusts. It does, however, note at Paragraph 2.16 that the respective figures for the time taken to settle claims in England and Wales are not directly comparable. (Mr Walker) The oldest case which we inherited when the Authority was created and which was settled fairly quickly, had been outstanding for about 15 years. It was a fairly serious injury but the claimants' solicitors had not made the running, defence solicitors had felt they were under no pressure to make the running and in fact both sides were quite surprised when we told them to get it settled before the end of the year. That was the prevailing attitude we inherited and one of the reasons why the Authority was created. Back