House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fifth Report

1 Introduction

1. The Constitutional Affairs Committee published its Third Report of Session 2005-06 on Compensation Culture on 1 March 2006, as HC 754-I. The Government response has not yet been published. Following an oral evidence session on 31 January 2006, Rt Hon Jane Kennedy MP, Minister of State for Quality and Patient Safety at the Department of Health, promised to return to the Committee and provide some further details about the proposed NHS Redress Bill. A letter from the Minister was subsequently received on 12 March 2006. The letter is printed as an appendix to this Report.

2. The particular areas of concern expressed to the Minister at the session on 31 January 2006 were as follows:

Whether the Department of Health had a current list of medical experts who were able to provide medical reports;
Whether doctors and lawyers would be willing to work for fixed fees and the proposed level of those fees;
The expected number of additional claimants under the Redress procedure.

3. The Minister's letter dealt with each of these issues and we take them in turn.

Independent Medical Experts

4. In answer to the question as to whether the Department had a current list of experts, the Minister wrote:

I think it may be helpful to clarify this point. Under the Clinical Negligence Scheme for Trusts, there is currently a list of medical experts prepared to provide independent medical reports for clinical negligence claims under the Clinical Negligence Scheme for Trusts. In my oral evidence, I suggested that it was possible this practice would also apply under the redress scheme. This remains an option but we will be working closely with stakeholders when consulting on the secondary legislation to determine how medical reports may best be commissioned, with flexibility being very important.

5. The Clinical Negligence Scheme for Trusts (CNST) is a mutual pooling pay-as-you-go arrangement for NHS trusts in England, designed to assist trusts in meeting the costs of clinical negligence claims.

6. Details of the Clinical Negligence Scheme for Trusts are available on the NHS Litigation Authority website. It states that:

The Clinical Negligence Scheme for Trusts handles all clinical negligence claims against member NHS bodies where the incident in question took place on or after 1 April 1995 (or when the body joined the scheme, if that is later). Although membership of the scheme is voluntary, all NHS Trusts (including Foundation Trusts) and Primary Care Trusts (PCTs) in England currently belong to the scheme. […]When a claim is made against a member of CNST, the NHS body remains the legal defendant. However, the NHSLA takes over full responsibility for handling the claim and meeting the associated costs. Until April 2002, trusts handled claims within their chosen excess themselves. Such claims were then "called-in" and all CNST claims are now handled centrally regardless of value. The scope of the scheme is set out in the CNST rules, while our Clinical negligence reporting guidelines and CNST claim report form set out how claims should be reported by trusts to the NHSLA. A Guide to clinicians on how claims are handled is also available.[

7. The Minister has not set out details of whom she intends to consult about the list of doctors who will provide medical reports and what questions she intends to raise with "stakeholders". There is a clear difficulty about ensuring that claimants are not disadvantaged by the use of experts in the pay of the NHS.

Fixed fees

8. When we took oral evidence from the Minister, the Committee was concerned about whether doctors and lawyers would be willing to work for fixed fees. In evidence, the Minister stated that:

I have seen figures that we anticipate figures of £200-500 for different [medical] reports. This is not a new field that we are operating in. There are already given costs but we expect that the operation of this scheme will reduce the amount of money paid in legal fees. We expect it will increase the amount paid in compensation but we anticipate there will be a reduction in the amount that we pay in fees.[

9. In her letter of 12 March 2006, the Minister wrote:

To avoid any misunderstanding, I would like to clarify that my response during the oral hearing related to fees for independent medical reports. Figures supplied by the NHS Litigation Authority show that these fees could range between £200 and £500. As regards legal fees, by way of example, information provided by the NHS Litigation Authority shows that the agreed rate for defence panel firms who have approved offices in London, ranges between £85 and £185 per hour. Figures published by the Supreme Court Costs Office show that London claimant fees can range from £100 to £342 per hour.

10. Unfortunately, the figures provided by the Minister confirm our initial fear that the Department of Health does not seem sufficiently focused on the detail of the proposals and has not given detailed consideration to the potential cost. While it is perfectly reasonable that the cost of medical reports should vary according to the type of injury sustained, the cost differential cited by the Department of Health is in excess of 100 percent. The figures cited about the range of legal fees are even more variable. If the Minister is seeking to bear down on this type of cost, this should be made plain, so that the impact on independent provision could be assessed. This is important, since we have no evidence that doctors and lawyers would be willing to provide high quality independent advice for low fixed fees.

Number of additional claims under the Redress Scheme

11. The Minister has indicated in her correspondence that "we do expect more people to come forward" and goes on to indicate that modelling based on patient survey data suggests that making it easier for a patient to make a claim "may cause claims to rise by anything from 2,200-19,500 a year".

12. Again, these differentials make it appear that the statistics have been plucked out of the air. This goes to support our initial recommendation that this scheme should be piloted prior to a national roll out, since it is impossible to predict the upsurge of claims and associated cost. It should be remembered that money that is paid in compensation is money that will then not be able to be used by the NHS for the provision of patient care.

1 http:www.nhsla.com Back

2 Constitutional Affairs Committee, Third Report of Session 2005-06, Compensation Culture, HC 754-II, Q288 Back



© Parliamentary copyright 2006	Prepared 28 March 2006