Appendix
Letter from Rt Hon Jane Kennedy MP, Minister of
State, Department of Health to Rt Hon Alan Beith MP, Chairman
of the Constitutional Affairs Committee
I should like to thank the Constitutional Affairs
Select Committee for the opportunity to explain in more detail
the Government's thinking behind the NHS Redress Bill.
During my evidence, I offered to write to the Committee on a few
of the points raised.
Independent Medical Experts
Under the Clinical Negligence Scheme tot Trusts,
administered by the NHS Litigation Authority, claimants and defendants
have lists of the experts in different specialties who prepare
independent medical reports on request. The experts assert their
independence by signing a statement on every report to the effect
that they acknowledge their duty to the court, not to either of
the parties.
At Report stage, a government amendment was made
to clause6(1)(b) of the NHS Redress Bill that will, in
appropriate cases, enable the scheme to provide for the services
of medical experts or other relevant services at any stage of
the proceedings under the redress scheme. We would not wish there
to be any restriction on when these services may be used. However,
it is our intention to work closely with stakeholders when consulting
on the secondary legislation to determine the circumstances in
which it may be appropriate to commission a jointly instructed
independent medical expert.
During oral evidence, I referred to a current list
of experts being available to provide medical reports in the event
of a claim for redress. I think ft may be helpful to clarify this
point. Under Clinical Negligence Scheme for Trusts, there is currently
a list of medical experts prepared to provide independent medical
reports for clinical negligence claims under 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
Meetings with the Legal Profession
I agreed to provide you with Information regarding
legal stakeholder involvement.
In June 2003, the CMO published his consultation
document Making Amends, which set out recommendations for
clinical negligence reform. Of the 170 responses received, over
40 came from legal organizations. These generally supported reform,
but the other issues raised focused around the logistics of the
redress scheme and the impact on patients—for example, the
need to ensure individuals retain the right to legal advice and
litigation.
The Law Society and the Law Reform Committee of the
Bar Council supported the need for an alternative, to the current
system and their feedback focused on issues concerning patients.
The Bar Council also wanted to see reform adding value to the
current system of complaints and compensation.
We have continued to liaise with the legal professions
during the passage of the Bill through Parliament and we will
consult them on the secondary legislation.
Independent Legal Advice
We remain committed to protecting patients' rights.
The NHS Redress Scheme provides an alternative to the courts,
and gives patients another way of getting the explanations, apologies
and offers of redress they say they want. To gain patient confidence,
it is important patients receive support and advice throughout
the redress process and we have taken powers to ensure this is
able to happen.
We have taken on board the concerns raised during
Committee stage of the Bill that access to legal advice without
charge prior to settlement should be an immutable requirement
of the scheme. Prior to these concerns being raised, it had been
our intention that legal advice on an offer of settlement would
be available to enable patients to have the offer of redress independently
evaluated without charge to them. This would enable them to assess
whether or not the offer is reasonable and equivalent to what
they would have received through the courts, and to explain the
implications of signing a waiver.
However, In light of concerns raised, a government
amendment was made at Report to clause 8 to strengthen the wording
of the Bill to require the Secretary of State to make such provision
as she considers appropriate to ensure that all persons makings
claim under the scheme have access to free legal advice in relation
to offers and settlement agreements. I believe this will clarify
the position and provide reassurance that under the scheme, patients
will have the opportunity to be fully and appropriately advised
about the offer and the consequences of waiving the right to bring
civil proceedings.
The existing clause 8(1) will continue to enable
the scheme to make such provision as the Secretary of State thinks
fit for the provision of legal advice without charge in connection
with proceedings under the scheme. This may be used in appropriate
circumstances to provide legal advice without charge. at earlier
stages of the proceedings; for example, where the joint instruction
of a medical expert may be required. We Intend to consult on the
circumstances in which it may be appropriate.
Fixed Fees for Medical Experts and Lawyers
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 all defence panel firms who have approved offices in
London, ranges between £85 and £185 per hour. Figures
published by the Supreme Courts Costs Office show that London
claimant feds can range from £100 to £342 per hour.
Reduction in compensation payable
The NHS Redress Scheme does not seek to reduce the
amount of compensation paid to eligible patients. It is intended
that offers will be equivalent to awards which would have been
made by the courts. This will be checked through the legal advice
made available to the patient or individual eligible for redress
once an offer has been made. There would therefore be no advantage
in knowingly offering less compensation than would be received
through the courts because, following legal advice, the offer
would be rejected and more expensive court action taken. This
would be counterproductive. To be successful, the offer of redress
under the scheme will have to be equivalent to that granted by
the courts.
Number of additional claims under the Redress
Scheme
The numbers I provided in oral evidence relate to
claims under the Clinical Negligence Scheme for Trusts scheme.
Whilst the expected numbers of additional claims under the redress
scheme may be similar, I think it will be helpful to avoid any
misunderstanding and to provide the committee with additional
information.
Over the past three years (from the financial year
2001-02 to 2003-04), the average number of claims settled under
£20,000 under Clinical Negligence. Scheme for Trusts was
around 4,100. This represents approximately 75% of claims settled
during that period. Precise numbers of expected new claims under
the redress scheme are hard to predict because it involves modelling
human behaviour. As I explained, the scheme seeks to make redress
more straightforward, and we do therefore expect more people to
come forward.
Over the past few years (from the financial year
2001/02 to 2003/04), the NHSLA received on average around 7,000
new claims a year. Modelling work within the Department of Health
based on patient survey data suggest 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. However, it is important to remember
that the scheme will be subject to the current law of tort. This
will ensure that only genuine cases will be eligible for the scheme
and we expect the vast majority of opportunistic claims to be
easily rejected.
Targets
As I explained during the oral hearing, I do not
see targets as being appropriate for the NHS Redress Scheme. The
scheme is about creating a culture of openness and encouraging
learning within the NHS. It will put the patient at the heart
of the process. This would be difficult to quantify; the scheme
needs to retain the flexibility to respond to local environments
and patient needs.
However, post-implementation review, expected to
be after three years, will cover two aspects: whether the scheme
is meeting its policy objectives and whether the scope of the
Scheme ought to be extended. To meet its policy objectives, the
scheme will need to demonstrate increased patient satisfaction
in their dealings with NHS providers over clinical negligence
issues, a reduction over time in the number of cases falling within
the scheme (i.e. evidence of local learning) and a shift towards
a reduction in legal costs for handling clinical negligence claims
of small monetary value.
The cost of the NHS Complaints Procedure
The Department does not collect these figures centrally.
However, we do envisage close links between redress and complaints.
In each instance, there will be a full investigation to determine
the facts. This applies whether it is a clinical negligence case
or dissatisfaction with, for example, a delay in being given an
appointment Where appropriate, complainants should be offered
an explanation and apology. This is good practice.
The redress scheme then takes this a step further
For those clinical negligence cases where financial compensation
is appropriate, and the patient wants that compensation, an offer
will be made
Guidance on Complaints
We are currently reviewing the NHS complaints system
with the aim of shifting from a system that is driven by process
and organisation. It is important for. complaints to have a patient-focus;
to ask what Is a patient looking to achieve when making a complaint
When complete, the new approach will be supported by guidance/good
practice.
Statistics on numbers of complaints officers
The Department does not collect this information
centrally.
Keith Vaz raised a question specifically about the
number of. complaints managers in the University Hospitals of
Leicester NHS Trust and I will reply to him personally on this.
Statement by the 16 charities
In terms of a guarantee of an independent assessment
of the case, It is intended that the scheme authority will have
the overview of the scheme, will monitor the scheme for consistency,
and will issue guidance to scheme members. A separate complaints
procedure for the redress scheme will be established in secondary
legislation and this will enable a patient to complain about maladministration
of the scheme.
We envisage that most complaints will be resolved
informally at local level. The intention is that formal complaints
will be considered by the scheme authority. However, if still
dissatisfied, a complaint of maladministration may be made to
the Health Service Commissioner.
It is also intended that consideration of the effectiveness
of the operation of the NHS Redress Scheme, including investigations
carried out under the scheme, will be included as part of the
Healthcare Commission's annual review of the provision of health
care by and for NHS bodies. The intention is mat the Secretary
of State for Health will include a new standard relating to redress
and that the Healthcare Commission will include new criteria against
which operation of the scheme will be reviewed.
I hope this is helpful in clarifying further the
issues raised during my evidence to the Committee.
Jane Kennedy
Department of Health
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