5. Choice and litigation
107. Many witnesses have drawn attention to the argument
that increasing rates of litigation for birth-related adverse
outcomes may be having an impact on clinical decision making,
and restricting the information given to women and hence their
ability to make informed choices about their clinical care:
I think there is some evidence that that fear of
litigation may bias what is made available to women so that women
have informed compliance rather than informed consent. That is
a big issue. There are women who, for all sorts of reasons, might
choose to want to have twins vaginally or a breech baby vaginally.
It is very important they have the information and know the risks
they are running; but ultimately it has got to be down to them.[76]
108. The Chief Medical Officer's eagerly awaited
consultation paper on clinical negligence and litigation, Making
Amends, was published shortly after we completed taking evidence
on this inquiry.[77]
It recommends the development of an NHS Redress Scheme, the aim
of which will be to provide no-fault compensation of up to £30,000
to NHS patients who suffer an adverse outcome as the result of
serious shortcomings in the standard of their care. The reforms
also propose that the scheme should encompass care and compensation
for severely neurologically impaired babies or babies with cerebral
palsy, whose condition has resulted from birth under NHS care.
Payments would be capped at £100,000 per annum, but supplementary
payments of up to £50,000 would also be available to cover
home adaptations, and to compensate for pain and suffering.
109. Making Amends also proposes reforms to
the complaints management process, and the introduction of a 'Duty
of Candour' on all healthcare professionals and managers, obliging
them to inform patients where they become aware of a possible
negligent act or omission. This would be accompanied by exempting
clinicians and managers from disciplinary action by employers
or professional regulatory bodies, except where a criminal offence
has been committed, or where it would not be safe for a healthcare
professional to continue to treat patients.
110. The consultation
paper does not explicitly address the issue of defensive medicine,
and we are not convinced that on their own these reforms will
have a significant impact on the more defensive clinical practices
that have become entrenched in maternity care in recent years.
It will take time to establish whether such a scheme can engender
a true 'no-blame' culture in the NHS, or whether admission of
responsibility for a clinical error or misjudgement would still
go hand in hand with individual clinicians being singled out or
stigmatised, an approach which may still be perceived as being
implicitly punitive. A system of collective, team-based responsibility
might be more likely to succeed in building clinicians' confidence
to report adverse incidents. Our concern is that the defensive
approach to medicine may particularly undermine giving women choice
in maternity services and we urge the Government to implement
and monitor any changes with this in mind.
76 Q 26 (Belinda Phipps, NCT). Back
77
Department of Health, Making Amends-A Consultation Paper Setting
Out Proposals for Reforming the Approach to Clinical Negligence
in the NHS, June 2003. Back
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