Examination of Witnesses (Questions 120-139)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
120. May I go back to the Health Service side with regard to negligence? When do we realistically start telling people the risks involved in going to hospital, the likely outcomes and talking people through the process, so they are counselled on an outcome before they actually do start making applications for legal aid which they fail in because they have no grounds for a claim?
(Mr Crisp) Any procedure in hospital should be accompanied by a consent process; it is a process rather than just a form. We are attempting to get that better. You have seen the figures here in discussion with Mr Osborne earlier about the things we should be doing to provide good information to patients so we can actually minimise the risk of things going wrong and be clear that we are providing that sort of process. Every doctor should be doing that anyway. What we are doing now is making sure that we are monitoring that much more closely through the Clinical Negligence Schemes and Trusts and through the clinical governance arrangements within the hospital itself, through reports through the board and through the independent inspectorate of the Commission for Health Improvement. All of those things are bearing precisely on the problem that the Health Service treats one million people every 36 hours. Every one of those people treated in that time should have a good explanation of what is happening to them and so on. It is very important we do that In that context these are relatively small numbers, but nevertheless we should not have anyone not understanding what is happening, not understanding the potential consequences, the potential complications and so on. We are, however, piloting a new consent procedure in order to try to make this smarter and better and more consistent.
121. What outcome are you predicting for the improvement in this situation with regard to claims for negligence?
(Mr Crisp) I am not sure we have a prediction with regard to claims as such because to some extent whether people claim or not may be outside our control because it may be to do with wider issues in society and so on. What we are looking for is a reduction in incidents. Claims are not necessarily proven things and we are looking for that in terms of improved procedures through this process we talked about, the process I mentioned earlier that we now have a system for reporting all adverse incidents and we want to see that going down. What will happen now we have started reporting systematically is that the numbers will go up to start with because there will be a lot of things which are hidden. We are really trying to get hold of this and squeeze it down. With 200 million patient interactions every year, how people respond to that as the general public is not totally within our control.
122. So you have a plan, albeit a very cunning plan to drive this number down.
(Mr Crisp) It is a complicated plan. We cannot absolutely control the number of people who make a claim on the Health Service. We can reduce the number of adverse incidents, the things that go wrong; we can reduce that and that is what we need to do.
123. Where do I get the figures you can project for the next five years on the average incidence in this area?
(Mr Crisp) I cannot produce figures which are that specific because we are only just starting to introduce that information and I have no doubt that initially the figures will look bigger because we are collecting them systematically which we have not done before.
124. Will it become part of this new arrangement we have been hearing about next year from the Department of Health?
(Mr Crisp) It is linked. In order to get quality we have about four or five different things happening: better training for doctors, introduction of new consent procedures, more rigorous assessment of risk within hospital, which is the process which has been talked about here. Some of these are not covered in this report but they are all linked together because all of these things need to be linked together. The introduction of the replacement for community health councils will actually provide advocates for people, help support people as they make complaints, make communication better. All of those things together are all pointing in the right direction. It is too early yet for us to be able to say to you that this will lead to a reduction of X in the number of complaints or a reduction of Y in the number of incidents. I cannot do that because we do not have the evidence yet for doing that. All of them should be putting pressure on that and reducing the numbers.
125. When will you get sufficient data to be able to give us a prediction?
(Mr Crisp) I suppose you would not want to give a prediction unless you had something like a three or four year time series, would you? I should think in three or four years' time.
126. And we cannot use any historical information for this?
(Mr Crisp) We only have information on some of the variants I just talked about; we do not have that on all of them.
127. We do not have any best practices we can adopt in the country.
(Mr Crisp) We do indeed have best practices which we can adopt in the country and that is part of the Clinical Negligence Scheme for Trusts which is in the report. That is about how we spread best practice. We are not just coming along and inspecting people and telling them where they fit in. We are also advising them about good practice. We are also asking them to look at other people and so on. There is a big development programme associated with it.
128. I accept that. If we have figures on certain areas, do we have figures on a regional basis?
(Mr Crisp) At the moment we do not collect figures on adverse incidents, if that is what you are talking about. If you want figures on claims on a regional basis, then no doubt we can provide that.
Mr Jenkins: That would be very interesting.
129. Is one of your key objectives to minimise the cost of claims?
(Mr Crisp) We have lots of objectives in the Health Service. There is a more important one than that, which is to improve the service. Clearly as we improve the service we should also minimise the costs of doing it badly. The thesis we have is that if we improve the quality we shall also reduce the cost. We want to improve the quality and then reduce the cost. It is that way round.
130. I am glad you clarified that. The more I have listened to this hearing, the more I have a feeling that we are talking to a producer rather than a consumer led organisation which is about covering backs and minimising costs and not allowing people who have had medical negligence inflicted upon them to get their just desserts, be it through legal aid or be it through dragging things out for years until claimants die.
(Mr Crisp) I have been talking about minimising risks not minimising costs. The very first question I was asked by Mr Rendel was what this was about. I said it was about patients and patients' quality. That is where we are on this. Clearly we have to manage the money as well, but we are a National Health Service.
131. Do you see your role as empowering consumers of health services to make rational representations and have their just desserts, or do you see it more as trying to minimise your exposure and not encouraging a drain on public funds?
(Mr Crisp) My first responsibility is to improve the quality of the service. Part of improving the quality of service is making sure that patients understand what is going on - all the issues which have just been raised by Mr Jenkinsand making sure that if we do do something wrong within the Health Service, it is explained to people and an apology given.
132. Something which happened to spring to mind earlier. I was told by a chair of a trust of a hospital that the Royal College was advising their members who were doctors in hospitals that they should not diagnose more than about four patients an hour, when currently that particular hospital was diagnosing ten an hour. The reason they were giving this advice was to protect their members from possible legal action. Are you aware of that and are you aware of the knock-on impact on costs which presumably is enormous?
(Mr Crisp) There are quite a lot of Royal Colleges, so I am not sure which Royal College you are talking about. You can no doubt give me details afterwards; there are different branches, as you well understand.
133. In London.
(Mr Crisp) Was it surgeons, or physicians or ophthalmologists? Do you see what I mean?
134. As that is complicated, I shall drop you a line about it and we shall move on.
(Mr Crisp) Please do.
135. Responsibility for taking action has gone to the NHS Litigation Authority. Is there a danger here that, if you want a consumer led organisation and I go to a hospital and they make a mistake in whatever they do and I want to take that up, suddenly I am referred to the Litigation Authority? Is there not a problem there that that in itself means there is going to be no way that we can solve this through non-legal means? As soon as it is kicked into the long grass in litigation does that not cause a problem in itself?
(Mr Crisp) The first thing if something has gone wrong is that people should get an explanation, preferably from the people who have been involved in this. We know that a lot of complaints get resolved when people actually meet the doctor or the nurse involved or whatever.
136. Say it was me and they chopped off my little toe and I wanted to make a claim. Is there a possibility for you to short circuit the system and say, "Look, this is a fair cop. We'll give you this money or else we'll refer it to the Litigation Authority, but they take ages. Let's get it sorted out rather than waiting an average of five and a half years alongside 23,000 other people".
(Mr Crisp) Most issues are rather less clear cut than having cut off your toe.
137. Yes, but let us take that as a real example. I realise that many are more complicated. Would that be conceivable or would it necessarily have to end up with the lawyers?
(Mr Crisp) The first thing we would do is try to talk about the medical condition and how we were going to handle it. At that point you would then be picked up if you were saying you wanted to make a claim about this.
138. Let us say I did and he did chop it off.
(Mr Crisp) The individual hospital would have somebody who was the claims manager who would then pick it up. That would be a local person. They would be in touch with the Litigation Authority, so there would be a linkage.
(Mr Walker) It is an even more interesting question than you think. I shall come to that in a moment.
139. I am running out of time. What would happen, not to my toe but to my wallet?
(Mr Walker) Exactly what would happen is that the local claims manager would tell the Litigation Authority that they had done all that was necessary therapeutically, apologies, advice, etcetera. They would ask us to value the claim. If they said they thought it was worth about £2,000 and we thought it was worth about £2,000, whatever it might be, they would offer it. They would offer it locally.
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