Examination of Witnesses (Questions 160-179)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
160. So there is a system for short-circuiting.
(Mr Walker) There is not a system, but if we became aware of a problem like that, as we do occasionally become aware of problems, we try to react to them. I should have no hesitation in dealing with the one you have described like that.
161. Coming back to the Bristol babies case, insofar as these cases emerge and there may be some dodgy surgeons on the loose, killing people essentially, is there a twin track approach whereby there is some legal time but in the meantime something is done to stop the deadly surgeon?
(Mr Crisp) Absolutely. We have learned a lot of lessons from Bristol, some of which were already being put into place beforehand. We want to look precisely at what I keep callingand I am afraid this is the language I am usingadverse incidents. We look at the record. We look at what is happening and if a pattern emerges we then need to move in. We now have much, much better mechanisms for doing that.
162. On legal costs, I know the Legal Services Commission were given 700 cases which were over five years old and 95 per cent were on legal aid. Just so I am clear here, the legal aid cost obviously goes up over time, partly because of running costs but partly because the costs are escalating ten per cent every year, are they not? In terms of the overall cost management of public sector funds, do you not think we should put more focus on reducing the average time?
(Mr Orchard) Yes.
163. You have already said you will try to put a value on reducing the average time, say, from five and a half to four and a half years and provide the Committee with that. Then the Government might put the resources in or perhaps public/private partnership, who knows, to get this sorted out. It seems to me from listening to all this that this is a system where the patient loses, they have to wait or not have anything done and the taxpayer loses. Do you have any sort of estimate on how many people are thinking that their case is complicated, they do not have legal aid, they have no lawyers who are willing to take a risk, it is very complicated to run this and the lawyers are focusing on profit maximisation? Do you have any idea how many people might be out there who have had clinical negligence against them and are simply not taking action? Is there any information on that and how much we owe them?
(Mr Crisp) The definition and problems in what you have just said are enormously complex.
164. I know.
(Mr Crisp) Our responsibility, as you and I agreed at the beginning, is actually to try to provide a Health Service where these things do not happen. Our first responsibility is to do that. In the vast, vast majority of places that is the case. We need better systems to do that and when something goes wrong then we need to handle it as smartly as we possibly can. That is why we set up this Authority five years ago, that is why we are giving it additional powers, that is why we have been putting in the issues we have been putting in place over the last few years. It is a highly speculative question as to how many people think they might have a legal claim.
165. Is there no way of finding out how many people have had their toe chopped off who were told that it was less than £50,000, they did not have legal aid, just ...?
(Mr Crisp) We are recording adverse incidents within the process, but let me make a difference between what is happening clinically, explaining to people what has happened and admitting liability for clinical negligence. That is not the same thing. There are two different systems and we run a clinical service here, which is why we look for colleagues with other expertise to support us in it.
Chairman: We now know the value of an MP's toe if nothing else. Thank you very much.
166. Would you agree that litigation is often the worst possible outcome both for the NHS and for patients?
(Mr Crisp) I suppose it depends on the circumstances. I would agree that we should try to avoid it. Having said that, in some cases it is inevitable.
167. Do you think we are getting towards what people call a litigation culture?
(Mr Crisp) I do not know. I suspect you as MPs have a better sense of what is happening in the country than I in running the NHS. Maybe there is some evidence of that if you look across the whole picture.
168. I would have thought prima facie evidence of it was the fact that the total annual charge to NHS income and expenditure accounts provisions for settlement of claims has risen sevenfold within five years.
(Mr Crisp) The annual cost is about £400 million at the moment. What you have there are the provisions made over that period.
169. Yes; sure.
(Mr Crisp) Mr Walker explained partly what the circumstance there was: that we were not making satisfactory provision at the start of it because we did not have a professional organisation individual like Mr Walker to advise us on that so trusts were not putting provision in their accounts. It is worth noting that the actual amount we paid out last year was something of the order of £380 million.
(Sir Hayden Phillips) You could argue, and we would tend to argue, that one of the things this represents is the fact that people are keener than before and more prepared to seek their rights. That is going on now. You can call it litigation culture. Put that way, that is a good thing on the whole. What we are trying to do is to make sure that litigation is necessary and worthwhile and tackle it that way and that is the way we would approach it and look for alternatives to litigation wherever we could find them.
170. What I am interested in is why people sue. You may be familiar with the study the Lancet did a few years ago indicating that seeking financial compensation was by no means the only reason that people sue. Out of 227 people they surveyed, 85 could find no satisfactory answer to what was happening to them and the fact that they are insensitively handled is often one of the factors which leads them to decide to sue. Paragraph 3.11 of the report talks about guidance and the fact that "Patients need clear guidance on the options available to them if they wish to take matters further", which may be claiming compensation, which may be simply obtaining an apology or getting further information or making a complaint but perhaps not seeking financial compensation and that the system actually makes it quite difficult to pursue a range of different remedies. It says, "... no one process necessarily provides all remedies". Do you think that the current system of having on the one hand complaints in their various guises and on the other hand claims is the best way to do it?
(Mr Crisp) We have had an independent evaluation of the complaints system and at the beginning of September we published the findings from that which largely overlap with some of the points you are making, which is actually that what people want is a whole host of different things. They actually want to be treated like human beings and have a discussion and everything else that flows through from that. It has put out some proposals on that and has asked for comment. That is the complaints system. At the same time we have the CMO's working party looking at the clinical negligence system. We are going to make sure that we dovetail the two. I cannot give you a straight answer as to how to dovetail them.
171. Do you think that there may be a caseI am not asking you to be absolutely definitive but that there may be a casefor having one system where you are not forced to go down one avenue or another. While I am at it, may I ask a second related question? If you wanted to, could you pay people money without seeing them?
(Mr Crisp) The second part is yes. I am not trying to be pedantic but in the first part you want one system which may lead in one direction or another.
172. The point is that you have to go down this claim system, do you not? You cannot make a complaint. The report gives us a rather helpful chart: patient wants money; patient has to follow litigation path. Patient wants explanation, apology and assurances goes down this other path. What I am asking is whether there is a case for merging those two so you are not required to litigate?
(Mr Crisp) It is amongst the things we are looking at. The question is how to merge them.
173. What I am asking for is your view on the merits of merging them.
(Mr Crisp) Our view is that it is something which it is really worth looking at, but actually the issue will be the detail of how you do that. Where do you merge it? Clearly the sensible thing is to merge it at an early stage, but at what stage? When you are actually getting into court proceedings or whatever, can you be pursuing the two issues at the same time? There is a lot of detail to work out in that, but it is seriously worth looking at.
(Sir Hayden Phillips) May I come in on the mediation line? In March the Government committed itself that every single department, with every suitable case, where the parties agreed, would pursue mediation. It has agreed to that. That is an absolute commitment. We shall monitor it and see how it goes. Clinical negligence mediation guidance was issued in June and it enables the Legal Services Commission, wherever people have tried to pursue that, to take that into account and also the courts can stop proceedings if they are satisfied that people are actually getting together and give them a chance to mediate. So in all those ways we are in combination trying to break this it-is-under-full-litigation or it-is-not culture, which was the historic culture which is being changed quite radically.
174. You bring me on rather more rapidly than I had planned to the question of mediation. I think Mr Orchard said in answer to a previous question that he thought there was not much scope for increasing the amount of mediation which takes place. Members of the Committee received a letter dated 27 September from the medical negligence law firm Osborne, Morris & Morgan in which Mr Tom Osborne of the firm says that as a firm they adopted the policy five years ago that they would offer to mediate every single claim which came into their office. "Unfortunately, despite repeated offers to mediate our claims, not only to the individual trusts and their solicitors but also the NHSLA all such offers have been rejected. We do not understand, therefore, why the NHSLA still insist mediation is not accepted by claimants' solicitors ... we believe that with this firm alone the NHS has paid out over £4m in damages which would not have been paid if they had agreed to meet with us". In light of that, which was dated only the end of September, could you explain further your comment that you do not think there is much room for increasing the scope of mediation?
(Mr Orchard) Mediation only works by consent. There are major issues which we have found out in mediation generally, not least in the family area, about imbalances of power or perceptions of imbalances of power in the mediation process. I am not writing it off: it is in our funding code as an option and certainly in the lower value cases one which should be considered. My feeling in terms of the practical reality of what would make a difference is addressing the issues you raised initially about the linkage between the complaints system and litigation or mediation as the only alternatives. Mr Crisp is right that we need to look very carefully. That is where the big return is, in trying to sort out those detailed issues around a complaints system and the fact that it is switched off immediately a threat of litigation enters the process.
175. This returns me to the question of the article in the Lancet because it said that of the various themes which emerged in the analysis of the reasons for litigation there were basically four themes: one, accountability, which is to see staff disciplined and called to account; two, an explanation, meaning a combination of wanting an explanation and feeling ignored or neglected; three, standards of care, wanting to ensure that it does not happen again, either to them or to other patients in a similar position; only fourth, compensation, wanting financial compensation and an admission of negligence. This brings me back to the question of the guidance. The NAO report basically says that there is no clear guidance, patients need clear guidance on the options available to them. Can you say, irrespective of what the CMO report comes out with, what steps are being taken now to try to make guidance clearer and more easily available in a user-friendly way?
(Mr Crisp) In a way the answer is going to be back to two points I made earlier. Firstly, we have this discussion under way on the complaints procedure. The independent evaluation of it made the points you made. We shall be expecting to come forward with some guidance there. The other point is that it is helpful to have somebody to help you through that guidance and the patients' advisory and liaison service is precisely that. However short and smart you make that flow chart you have just shown me, you may need help to work through that. It is both those things which need to be done and both are coming in.
176. Are you comfortable that the fact that this review is looking purely or primarily at the complaints side rather than looking at it what I might call holistically is satisfactory?
(Mr Crisp) Because we are making sure the two intersect with each other. Whilst they come from different roots, because the evaluation of the complaints service was set up some time before, we have not ruled out the fact that the two can come together.
177. That is great to hear. You mentioned that you were hoping to have some progress quite soon on the CMO report. When might we see something?
(Mr Crisp) Early next year.
178. Do you mean April or May, or do you mean January or February?
(Mr Crisp) I am not sure. I mean early next year; as early as we can make it. There are conflicting pressures here. One of the points of Mr Rendel's question was whether we are spending enough time on it, whereas there are other people saying that we have to do this quickly. That is a very important point, because we have to get it right. This is an important report, which is being produced, very important issues you are raising and this is the big chance to get it right.
179. One more question which relates to the topic you alluded to earlier, namely the most important thing of all, avoiding errors in the first place. You were saying that you had not hitherto collected information on adverse incidents, although you are probably familiar with the report which the former Chairman of this Committee, David Davis, wrote called Killing the Compensation Culture and Saving Patients. He said that estimates vary of the number of adverse events from between 300,000 and 1.4 million and that the Chief Medical Officer's expert group assessed the number at 850,000. He said that while estimates vary, these errors probably lead to 40,000 deaths per year of whichestimates vary but there is strong evidence to suggest that a lot of those errors are avoidableperhaps 20,000 deaths per year are probably avoidable in the NHS, which is a lot of people. Could you expand a little further on the work you are doing to avoid errors?
(Mr Crisp) You have just illustrated why this is so important. The former Chairman's report made two particular recommendations: one was for some kind of institute which would do something which is quite similar to our National Patients' Safety Agency, which is precisely about identifying, making sure that people locally are identifying what the issues are and looking at the patterns. The second thing that report asked for was a medical inspectorate. We have actually put in place a Commission for Health Improvement, which is an independent inspectorate, to come and actually look and check that the systems are being put in place. The third thing we have put in place organisationally is a National Clinical Assessment Authority so that when we have a question about a doctor, without going to the full panoply of going into the GMC or something of that sort, we can actually go and get this organisation, which has now been running since April and we know has already started to have some effect, to give the employer a proper assessment of what is going on. Quite a lot of things there. That last authority can require revised training or supervision or something for a member of the medical staff who may be in trouble.