Examination of Witnesses (Questions 280-299)
BARONESS ASHTON
OF UPHOLLAND
AND RT
HON JANE
KENNEDY MP
31 JANUARY 2006
Q280 Mr Khabra: In each
of the regulations for the management companies what sorts of
sanctions will be imposed?
Baroness Ashton of Upholland:
Ultimately the ambition is that those who are regulated, if they
fail to obey that regulation, will be prevented from being a claims
management company, which is about the best sanction you can have.
Of course, we are looking as well at what else might happen. One
of the areas that we are beginning to explore, although it is
very early days, is the whole question of compensation too for
those who might be treated badly and how we might address that.
Q281 Chairman: What is
going to be the position of trade unions and voluntary organisations
which do claims handling and which may feel that they ought to
be treated differently from commercial claims management companies?
You have to remember that we have major cases going on at the
moment about the handling by trade unions of the miners' compensation
scheme. Very serious issues are raised by that. What is your thinking
on that?
Baroness Ashton of Upholland:
The approach the Bill takes is to seek to capture everybody and
then to exempt people. That enables us to make sure that we exempt
appropriately but also to recognise that as things change we might
want in a sense to recapture later on, perhaps because the legislation
is used to capture other areas, or because shifting and changing
activities by organisations may result in them wanting to pick
up a particular aspect of claims management which would then require
them to be taken forward. Our plan at the moment, because I do
recognise the cases that you have identified, Chairman, is to
exempt trade unions but we want to listen to the views of both
Houses of Parliament. Our current consideration is whether we
should expect them to have regard to the code of practice. The
legislation does allow that we could bring organisations back
in if there was a need to do so and, of course, the current cases
the police are investigating at the moment, and it is difficult
to know precisely what will then happen. Claims management companies
set up by any other organisation would be subject to the regulations.
Chairman: They would automatically fall
within the legislation.
Q282 Julie Morgan: I would
like to go on to the NHS Redress Bill. One of the main issues
raised with us in evidence on the Bill is whether the scheme would
be sufficiently independent and I would therefore like to ask
some questions about independence under the scheme. The NHS Litigation
Authority indicated that independent medical reports would be
available under the redress process. How will you ensure the independence
of the medical advice?
Jane Kennedy: In the same way
that they would be commissioned for any other claim for redress
that an individual might be making against the Health Service,
we are not anticipating doing anything particularly new. Medical
reports are always regarded as independent.
Q283 Julie Morgan: So
would there be a list of accredited advisers?
Jane Kennedy: There are already
lists of people who are prepared to provide medical reports in
the event of a claim for redress, and I anticipate that the normal
practice would apply.
Q284 Julie Morgan: So
it would be a list that exists already?
Jane Kennedy: Yes.
Q285 Julie Morgan: Has
the Department had any discussion with the Law Society or any
legal professionals to ensure that there is legal professional
support for the scheme?
Jane Kennedy: I will certainly
check who we have had discussions with if you like and I can provide
that information to the committee but, with regard to the purpose
of the scheme, I thought Steve Walker put it really succinctly
and well when he said that this is a low value, fast track claims
handling scheme. That is what he called it when he came to speak
to you on 17 January. However, that does not really give you the
full flavour of why we are doing the scheme. Why I am particularly
pleased to be the sponsoring Minister for the Bill is that this
scheme is not just about improving access to justice for people
who believe that something has gone wrong with their treatment
and therefore redress is necessary; it is also about providing
a scheme which allows for determination of liability and assessment
of a mistake to be made very early on at a local level. The reason
why I am really pleased about that, wearing the hat that I have
as Minister with responsibility for patient safety and quality,
is that the process of this scheme will cause a change in culture
in the Health Service; I am absolutely confident of that, and
you will see a greater willingness of the Health Service at a
local level to learn from mistakes that they have made. I know
that is a long and roundabout answer but I cannot emphasise to
you strongly enough how much I believe this scheme will enable
healthcare professionals to stand up and say when a mistake has
happened, to involve the patient in that mistake, to draw the
attention of the patient to the scheme, to have the incident investigated
by their own organisation and then for the outcome of that investigation
to be referred to the Litigation Authority. I know the concerns
and I have been following the debates in the Lords and I am aware
of the concerns around the independence of the process, but I
really do feel very strongly that what we need to get to is a
system which delivers what patients tell us they want, which is
an acknowledgement that something has gone wrong, an apology from
the organisation and, where necessary, some redress (where that
is appropriate), but one of the most often stated reasons for
pursuing a complaint is to be reassured that the organisation
has learnt from the mistake so that future patients should not
have the same experience. We believe therefore that having a totally
independent process that allowed an independent investigator,
for example, to undertake it and independent processes that would
lift the whole thing at quite an early stage out of the local
organisation would stifle the sort of learning that we want to
promote. This scheme is potentially very valuable to us in the
Health Service and we want to promote that aspect of the scheme,
whilst at the same time we do accept that those people who are
taking a claim forward or who have made a complaint and for whom
there has been a mistake or an accident need to have the best
possible advice available to them. That is why we have been listening
to the arguments that have been made in the Lords and we have,
I think, reinforced the commitment to providing independent legal
advice. When there is an offer of redress made it an offer will
be made alongside the offer of redress for that to be independently
assessed by a legal firm that has expertise in that field.
Q286 Julie Morgan: So
the independent legal advice would be offered at the point you
were offering redress?
Jane Kennedy: It will always be
offered at that point but that is not to say that an individual
who doubted what they were being told at an earlier point could
not at that stage say, "Could I have an independent legal
opinion on that?".
Q287 Julie Morgan: So
you could have that earlier in the scheme?
Jane Kennedy: What we are looking
for is flexibility in the way that we will be operating the scheme
to allow individuals, if they need it, to seek that kind of reassurance,
but the scheme itself is designed to give a very quick response
to people who believe that something has gone wrong with the treatment
that they have received.
Q288 Julie Morgan: Does
the Department envisage that doctors and lawyers would have fixed
fees?
Jane Kennedy: Yes. I have seen
figures that we anticipate of between £200 and £500
for the cost of different 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.
Q289 Julie Morgan: What
if, during the process, it was decided that the claim was worth
more than £20,000? Will it be possible to extend the threshold
in particular circumstances?
Jane Kennedy: If it becomes clear
that this is a serious case that goes through the £20,000
ceiling the redress scheme will not deal with it. It will be dealt
with as any other scheme of a greater amount would be. Anything
that is estimated to be above the value of £20,000 would
be taken out of the scheme and dealt with separately.
Q290 Julie Morgan: So
if, during the process, it emerged that £20,000 was too low
a limit it would then come out of the scheme completely?
Jane Kennedy: Yes. It would go
through the normal route that applies at the moment.
Q291 Julie Morgan: Talking
about the costings again, if you are paying for an independent
medical report, independent legal advice and setting up a system
to investigate claims, would there be any savings at all on the
existing model?
Jane Kennedy: We did not go into
this with the view that we were creating a cost saving scheme.
We estimate that overall costs may increase. Because we anticipate
there will be more cases dealt with under the scheme we think
the costs may be around £48 million in the first year, which
is a small increase in the context of the huge investment that
we have seen in the Health Service over the past five years. As
I have said, we think the scheme will result in higher costs overall
but we think we will achieve a saving of around £7.6 million
on claimant lawyer costs. There will be more spent but more of
it will be going to patients.
Q292 Julie Morgan: So
you do not anticipate any reduction in the amount of compensation
to victims?
Jane Kennedy: No; not as a global
figure, that is.
Q293 Julie Morgan: How
much do the current non-legal complaints procedures cost that
are in the Health Service at the moment and do you see them being
affected by this scheme coming in?
Jane Kennedy: I have not got that
figure. I will get that figure for you and write to the committee
with it.
Q294 Julie Morgan: Would
you see those complaints being scaled back when this comes in?
Jane Kennedy: If the scheme operates
as I hope it will, the Healthcare Commission process, which is
a complaint process at the moment, would, I hope, see fewer cases
going to it. What we want to achieve is a scheme whereby the healthcare
organisation itself, so the hospital trust or the service provider
locally, will say, "Hands up. A mistake has been made. This
should be referred. We will investigate it", and then it
should be referred to the NHS Litigation Authority for the purposes
of the scheme. I think that, because more cases will go that way
and there will be, I hope, a greater openness and a willingness
to give the apology that I referred to earlier, there ought to
be fewer complaints failing to be resolved locally and ending
up at the door of the Healthcare Commission, which is what happens
at the moment.
Q295 Barbara Keeley: More
questions really about the operation of the scheme. You have touched
on, I think, the fact that you feel there would be an increase,
so it is just another question about that. We heard from the NHS
Litigation Authority that when they ran a pilot similar to the
new scheme, most of the claimants were people who would not claim
under existing processes, so in fact they were additional and
new claimants. I think you said there would be more cases. Have
there been estimates made of the number of additional claims which
you think will be generated under the redress scheme?
Jane Kennedy: At the moment the
number of claims is going down. I have not got a figure of estimates
of the number of cases that we might get immediately in front
of me, but if there are specific questions like that, that I have
not been able to answer because I do not have the data, I will
certainly get them for you. As I have said, we are trying to guesstimate
what might happen. I have got some figures here that say we expect
between 3,900 and 10,700 cases to be eligible. If you compare
that with the current figures, which I think you have had—if
you have not, again I can include those for you—the current
numbers of claims that the NHS Litigation Authority is dealing
with have come down from 7,798 in 2002 to 5,609 now, so we anticipate
straddling that number.
Q296 Barbara Keeley: In
fact, the next question links to it in a way. Do you intend to
pilot the scheme so that you can assess its impact? Will you pilot
it in part of the country perhaps?
Jane Kennedy: The NHSLA has been
doing some piloting. We do not anticipate that we will further
pilot the scheme. We are going to extend it to the whole of secondary
level care, including some elements of secondary care that are
moving out into the community. I suppose you could say we regard
that as the pilot because we are then going to see how that works
before we decide whether or not we should extend the scheme to
primary care.
Q297 Barbara Keeley: You
have talked in terms of some aspects of what you would like to
see in the scheme, but we are interested in how you would measure
the success of the scheme. Will you have targets and what will
they measure? One of the things you talked about which might be
quite difficult to measure is whether or not an organisation learns
from its mistakes.
Jane Kennedy: We would not set
targets as such; however, the Healthcare Commission will have
a role to play in this. As part of its annual health check that
it will do with all health service organisations, it will consider
claims against the organisation: where those claims have originated,
what the organisation has done to respond to those claims and
it will be part of the process by which healthcare organisations—and
I keep using that phrase because we are not just talking about
the NHS hospitals, we are talking about the whole range of organisations
that provides secondary level services—the Healthcare Commission
will consider whether or not the organisation has responded adequately
to the claims made against it. We are not going to set them targets
and say, "This number of cases should be had", I think
that will stifle the operation of the scheme. We want to let the
scheme run and let it be responsive to what patients experience
at the local level. I said we are talking about between 3,910
and 10,000 cases roughly. That is in the context of a health service
which has something like 1.6 million people receiving treatment
every day from the Health Service. The figures are amazing: 44,000
people every day attend an A&E department in England and 120,000
attend outpatient appointments every day. The context of the claims
and the incidents that are actually recorded seen against that
are very small. What I would hope to see, and one of the reasons
why in Government we are relatively relaxed about an increase
in the number of cases, given that large scale of work the Health
Service is engaged in, is the more people can say, "I think
something has gone wrong" and an acknowledgement of that,
the faster the services will improve and the better the experience
the patients will have of the Health Service. I am absolutely
convinced of that.
Q298 Barbara Keeley: On
the last point I raised about whether or not there is a perception
the organisation has learned from its mistakes, I know in my time
as an MP that is very important to people if there has been some
tragic mistake or something has gone wrong. Will the patient or
the patient's family be involved in that?
Jane Kennedy: Very much. One of
the benefits of the scheme will be instead of assuming the position,
which is what happens at the moment, where you have a patient
who believes something has gone wrong, they make a complaint,
they are not satisfied with the complaint, they go to a lawyer,
and within the organisation there is a closing of ranks and a
defensive response, if instead of that, you have an organisation
which says, "Something has gone wrong here, we need to learn
from it. Before we apportion blame, let us see what lessons we
can learn, acknowledge we have made a mistake", and give
the apologies I have referred to which is very important, particularly
if there has been a serious mistake in somebody's treatment, that
will go a long way to improving patient experience, I am sure.
Q299 Barbara Keeley: Just
a couple more things. You made the point that a claim of more
than £20,000 would be taken out of the scheme. If the scheme
proves to be successful, which clearly we hope it will do, do
you expect that it will be extended at some point to cover claims
of larger amounts over £20,000?
Jane Kennedy: One of the beauties
of doing regulation by secondary level legislation which we do
in Parliament—which when you are in government you love,
when you are not in government, you get very frustrated by—is
that you can quickly and relatively easily make amendments of
that kind to legislation of this nature, so we think that we will
be able to do that because of the way we set up the legislation.
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