Examination of Witnesses (Questions 300-311)
BARONESS ASHTON
OF UPHOLLAND
AND RT
HON JANE
KENNEDY MP
31 JANUARY 2006
Q300 Barbara Keeley: Finally,
clearly there is a tension between the need for a culture of openness.
The possibility that doctors whose actions have been complained
of will feel vulnerable to professional discipline is a major
tension of trying to arrive at the learning culture you talked
about. How will the redress scheme deal with that?
Jane Kennedy: There will still
be the normal rules and the normal procedures for dealing with
medical competence. I would not anticipate that this scheme will
in any way reduce the authority of various professional bodies
which oversee the conduct of professionals. I think that as we
run the scheme and confidence in the scheme grows, clinicians
will feel less concerned about them becoming the scapegoat for
a mistake having been made, a wrong procedure or a mistake with
equipment having occurred. I think they will join with us, I know
that there is an appetite out there amongst health professionals
to make sure they say, "There is a mistake here. I have made
a mistake and this is what has happened as a result. I have made
a mistake because of these factors". Then I know there will
be willingness to sign up to that on the part of the professionals.
Q301 Keith Vaz: Minister,
I just have one question. I think the approach that you set out
if something has gone wrong that the complaint is dealt with firstly
at a local level must be the right one but in many cases—you
must have this in your surgeries, and I have it when people come
to see me with problems about the local health service—the
letter that they get back, that initial letter from the health
authority is not as transparent and helpful, as you have pointed
out, that it should be. Is there any guidance coming from your
Department to teach chief executives of hospitals how they should
deal with the complaints in the open and transparent way that
you have just described?
Jane Kennedy: There is already
guidance on that and the Healthcare Commission would take an active
interest, particularly if they were receiving a lot of referrals
from a particular trust, in why that was happening, so there is
already guidance in place. I feel as if I keep repeating myself
in that I think that once this scheme is operating and we begin
to see the benefits of it at a local level there will be a real
enthusiasm for it that we have not seen before. The National Patient
Safety Agency at the moment collects and counts referrals to it
of adverse incidents in the Health Service. They do it on an anonymised
basis and they gather the data and then look at areas of concern,
procedures that are causing concern, and then can go back with
advice to organisations through their safety alert process which
can say, "There is something going wrong in this procedure.
You need all to be aware of it". I think there are such a
lot of benefits that can flow from a greater culture of openness.
I understand the point you are making about the letter. I have
been on the receiving end myself. If you have a process which
is involving the patient much more closely at a local level in
the process of resolution so you do not have just the cold, "We
are investigating your complaint", and then a letter to say,
"We have investigated your complaint. Yes, we failed to meet
the high standards we would normally expect. We apologise for
that and we are taking steps to redress it". You and I have
seen those letters. It leaves the patient cold because they have
to accept on trust that what the organisation is telling them
has happened. This process should be much more open at a local
level and would allow the patient greater assurance that not only
has that been said but that it has actually happened.
Q302 Keith Vaz: Do you
have any centrally held statistics as to how many complaints officers
there are in local health authorities? If I give you an example,
in Leicestershire, the authority of the Secretary of State, Leicester
Royal Infirmary has seven press officers to deal with the press
and I am not sure how many complaints officers they have. Do you
have any of those statistics on a national basis?
Jane Kennedy: I do not have them
with me. I can get them for you. An organisation may not have
somebody who is solely designated as a complaints officer, depending
on the size of the organisation, but certainly there will be people
who are designated as such and if I can get that I will provide
that to the committee.
Q303 Chairman: There was
a statement which was signed by 16 charities, including some of
the patient groups, and certainly you are familiar with it, which
expressed concern about the Bill and sought to get more assurance
that, where there was a dispute, independent assessment was guaranteed
and also referred to what you have just referred to, namely, learning
from mistakes and having robust systems in place to do that. Have
you delivered any sort of answer to that statement?
Jane Kennedy: We are considering
very carefully, and I think Lord Warner may already have tabled
a number of amendments in response to some of the concerns that
have been raised. We want to respond to the concern in a way which
preserves what I have said for such an important element of the
Bill, which is the impetus to change or influence the culture
in the Health Service. We need to provide those safeguards and
I think the Bill does that, but we obviously need to work hard
to make sure we explain that, not only in the Lords but in the
Commons too when it comes to the Commons. We need to balance having
the right safeguards for the individual who is making the complaint
and ensure they get independent advice and guidance when they
need it with the need to try and resolve it locally wherever possible.
Q304 Chairman: I would
also like to ask a question about care contracts under the Bill,
as to whether they could be used more widely, for example, in
relation to elderly people, where the financial amount involved
is not large but the care need may be significant, whether the
private sector should not be an option that is available when
care contracts are used to provide redress in these circumstances.
Are you still working on that and are you ambitious to make more
use of care contracts?
Jane Kennedy: I think so and we
would not want to be prescriptive as to how that could be organised
locally.
Q305 Chairman: Up to a
quarter of NHS liability payments are spent on remedial care,
so there clearly is scope for relating these things.
Jane Kennedy: And we want to look
at it carefully.
Q306 Mr Khabra: Evidence
which has been available to the committee suggests that since
the introduction of conditional fee agreements there has not been
a substantial increase in claims in spite of the funding mechanism.
Is there any evidence as to whether lawyers are more prone to
cherry-pick certain types of work?
Jane Kennedy: I am delighted to
say that that is an area which I am completely in the dark about
and Baroness Ashton is not.
Baroness Ashton of Upholland:
There is no hard evidence that lawyers cherry-pick. Of course,
from time to time there is anecdotal evidence and we are mindful
of keeping an eye on this area, but there is nothing that would
suggest that that is happening currently.
Q307 Mr Khabra: If the
answer is yes, do you accept that if there has not been an increase
in claims this means that certain claimants are being disadvantaged
and will find it hard to get representation?
Baroness Ashton of Upholland:
I do not necessarily accept that. I think that the way in which
we have done this will enable a huge swathe of people who did
not qualify for legal aid and were not wealthy enough to consider
pursuing matters to do so, and I think that is the advantage of
CFAs. As far as I can see, what the legal professions do and seem
to do well is identify claims that have a chance of success and
to enable those to go forward. I do not personally get—although
I probably will as a result of saying this, of course,—issues
being raised that suggest that there are people who are being
disadvantaged in a particular way. There will, of course, be individual
cases, I am sure, where people feel that that is the case, or
indeed where, because of the way in which the legal profession
approach it, they feel they would have had a better chance. Nonetheless,
there is nothing to suggest that at the present time.
Q308 Mr Khabra: Has there
been enough publicity given to these conditional fee agreements
as far as the ordinary public is concerned? Are they aware that
there are changes so that they can have the facility if they need
to?
Baroness Ashton of Upholland:
That is an interesting question to ask: has there been enough
publicity? Certainly those who feel they wish to make a claim
will be guided by this because if they go and see a legal representative
or the Citizens' Advice Bureau or whoever they will be told about
it. I cannot say that there has been a national campaign that
I am aware of to try and identify that because it has not been
perceived to be necessary.
Q309 Dr Whitehead: There
has, however, been evidence of uplifts in court once CFAs came
in and, as it were, lawyers seeking substantial uplifts in order
to deal with the consequences of the new cost terrain of CFAs.
Do you think the control of those uplifts can be sufficiently
maintained within the power of case management that the courts
presently have, and particularly, say, the objective of the Civil
Procedure Rules, or do you think perhaps there are further things
that ought to be looked at in that respect?
Baroness Ashton of Upholland:
You mean success fees, which is the term that encapsulates what
you are seeking to address, Dr Whitehead. Certainly the courts
do have the power to look at costs and see whether costs are appropriate
and proportionate, and they do. There are issues that have been
raised with me about whether there is more to be done in assessing
whether we have any impact that is adverse, and certainly media
organisations, for example, have raised this as recently as today
with me as to whether we ought to look at that and certainly the
impact of that is something we need to consider. Generally, however,
the courts do have the appropriate powers once a case has come
to court to be able to look at it and do so if they feel that
is appropriate.
Q310 Dr Whitehead: I think
the Civil Procedure Rules relate to proportionality as far as
those uplifts and success fees are concerned. Is that an area
that perhaps might be pursued in terms of some of these issues
where there is not protection against potential uplifts within
the system at the moment?
Baroness Ashton of Upholland:
The way the system works presently is that the courts will look
at whether the costs involved are appropriate and they will also
look at the level of the success fee. Those who feel very strongly
that this needs to be addressed will argue that what the courts
ought to do is add one to the other and then see whether it is
proportionate and, of course, the courts can look at this if they
wish to, but the way it is dealt with is to look at one and then
look at the success fee. Of course, success fees are important
in enabling the professionals to take on cases that may not be
successful. There is an issue about access to justice within that.
One of the areas that the Civil Justice Council might look at
is the question of whether this needs to be looked at again, and
certainly, again because of representation from media organisations,
my officials will be meeting with the Master of the Rolls and
Lord Justice Dyson to look at a number of issues that have been
raised where it might be appropriate for them to consider it,
as well as, of course, the House of Lords judgment in the Campbell
case.
Q311 Chairman: I do not
think we can let you out of the room without asking you in the
most general terms whether you think there is a compensation culture
in this country.
Baroness Ashton of Upholland:
There is not a compensation culture. There is a perception that
we have a compensation culture that has the potential to damage
the kinds of activities and occupations that people participate
in or potentially to affect the number of people who want to be
involved in those activities or to support and help run them.
Therefore, what we are seeking to do is to make sure we do not
end up with a compensation culture. Statistically the evidence
that we have is that we do not see growing numbers of claims,
I am pleased to say, but I am much concerned in the work we do
to make sure that we tackle the perception.
Chairman: Thank you very much indeed.
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