Evidence submitted by the Department of
Health (DoH)
OBJECTIVE
1. The Government's objective is to reform
the way lower value clinical negligence cases are handled in the
NHS to provide appropriate redress, including investigations,
explanations, apologies and financial redress where appropriate,
without the need to go to court, thereby improving the experience
of patients using the NHS. The bill does not amend the law relating
to liability for clinical negligence but provides an alternative
mechanism for resolving claims relating to such liabilities in
qualifying cases.
BACKGROUND
2. The NHS Plan stated that the Department
of Health would examine ways to improve the system of handling
and responding to clinical negligence claims that are made against
the NHS. A commitment in the Government's 2001 manifesto to reform
the approach to handling clinical negligence claims in the NHS
reinforced this approach. In August 2001, the Chief Medical Officer
(CMO), published a paper, "Call for Ideas", inviting
patients, NHS staff, the public and other key stakeholders to
give their views on how the NHS of the future should handle clinical
negligence incidents. The CMO also led a series of meetings with
an expert advisory group to develop thinking in this area. In
June 2003, the CMO published his consultation document Making
Amends, which set out recommendations for reform. The key
recommendation in Making Amends (Recommendation 1) is that:
"An NHS Redress Scheme should be introduced
to provide investigations when things go wrong; remedial treatment,
rehabilitation and care when needed; explanations and apologies;
and financial compensation in certain circumstances."
3. The current arrangements for dealing
with clinical negligence cases:
— are perceived to be complex, unfair
(as apparently similar cases may have different outcomes) and
slow;
— are costly both in terms of legal
fees and in diverting clinical staff from clinical care;
— have a negative effect on NHS staff,
morale and on public confidence;
— lead to patient dissatisfaction with
the lack of explanations and apologies or reassurance they receive
that action has been taken to prevent the same incident happening
to another patient; and
— encourage defensiveness and secrecy
in the NHS, which stands in the way of learning and improvement
in the health service.
4. We intend that an NHS redress scheme
will:
— provide a real alternative to litigation
for the cases that fall within the scheme, including addressing
the delays and legal costs that are part of the current system;
— lead to a more consistent response
to patients when things go wrong, providing them with an explanation
of what went wrong and what is proposed to be done to prevent
it happening again, leading to more positive patient experience
when things go wrong;
— place the emphasis on putting things
right, with patients offered appropriate remedial healthcare and,
where appropriate, financial compensation;
— provide speedier access to redress;
and
— provide a real alternative for those
patients unwilling or unable to take their cases to court.
CURRENT POSITION
5. In any healthcare system, things sometimes
go wrong. When this happens now in NHS provided healthcare, the
main route to compensation for a patient who considers that they
have been harmed during the course of NHS clinical treatment administered
by a health care professional, is to bring a claim for negligence—although
most cases are settled before the court hearing.
6. The legal system is adversarial. It makes
the staff in the NHS who are complained about defensive. Furthermore,
some patients cannot use this route to get the justice they deserve.
They may not satisfy the means testing criteria for legal aid
and may not then be able or willing to take the financial risks
involved in taking the legal route.
7. In a MORI survey, commissioned in 2002
for Making Amends, respondents were asked about the kind
of response from the NHS they considered would have been most
appropriate for their medical injury. The most common response
considered appropriate was an apology or explanation (34%), followed
by an inquiry into the causes (23%), and support in coping with
the consequences (16%). 11% of respondents indicated that financial
compensation would have been the most appropriate response.
8. The Department's most recent figures
for 2001 show that 78% of claims valued between £10,000 and
£15,000 cost more to settle than the amount awarded compared
to only 18% of claims valued at over £50,000. Money diverted
into legal and litigation costs is diverted away from NHS medical
care, whilst clinical time diverted into court proceedings is
time diverted from the treatment of NHS patients.
PROPOSALS
9. Much discussion of the scheme has focussed
around compensation. Where appropriate, compensation will be an
important element, but it is only one element of a more wide-ranging
reform. Where something has gone wrong and an NHS patient has
a sub-optimal clinical outcome, the first response of the NHS
must be to put the problem right, regardless of whether there
is an issue of fault. After investigation, it is important to
provide explanations to the patient and, where appropriate a meaningful
apology.
10. The scheme aims to provide redress in
its widest form in cases to which it applies, including apologies,
explanations and investigations. It puts patients at the heart
of the process of responding when things go wrong and learning
from mistakes. The significant local involvement in identifying
and investigating cases will give opportunities both for learning
at an early stage and for that learning to drive culture change
within organisations. The improved approach will ensure a simpler
and more effective approach to "making things right"
for patients and ensuring that where there has been clinical negligence,
the approach supports proper resolution within a non-adversarial
environment.
11. There will also be a change of emphasis.
Under the current systems of NHS complaints and claims for clinical
negligence, the onus is on the patient to identify that something
has gone wrong and to decide how they would like the organisation
concerned to respond. We believe that not all patients or their
relatives currently raise their concerns. This means not all appropriate
cases are identified and organisations lose the opportunity to
learn from the incident and improve services in the future.
12. We intend that an NHS redress scheme
will take a different approach. The organisation delivering NHS
care will identify incidents falling within the scheme and respond
in a much more open and transparent way when concerns are raised.
This meets patient expectation of what should happen if something
does go wrong with their care. There will, however, be cases where
the NHS is not able or has failed to identify cases potentially
falling within the scheme, and it is therefore intended that patients
will also be able to apply for their cases to be considered.
13. The scheme will seek to ensure that
those patients who have received clinically negligent treatment
from a health care professional should receive an appropriate
response without having to suffer the strain of an adversarial
system. Many patients have neither the time nor the desire to
go through a long drawn out process at an already difficult time.
They find themselves up against entrenched attitudes and systems
that are not designed around their needs. NHS staff often feel
that openness goes unrewarded in the current defensive climate.
14. The scheme will support a new emphasis
on learning from mistakes to improve future care. We intend that
each member of the scheme will have someone at Board level designated
with responsibility for identifying learning opportunities and
following these up with action to deliver improved services.
15. The Department of Health believes that
the scheme will provide a further driver for the cultural and
organisational shift that is needed to deliver improved hospital
services to patients. The scheme will enable the scheme authority
and the National Patient Safety Agency to identify patterns of
errors and to help formulate and introduce changes to procedures
to prevent recurrence, thereby reducing future adverse incidents.
In the longer term, this should reduce the burden on Trusts both
in financial terms and in terms of the stress placed on individual
staff members when there are adverse outcomes for patients. Such
improvements will deliver significant benefits for patients.
PROPOSALS—LEGAL
ISSUES
16. The NHS Redress Bill takes powers to
enable the Secretary of State for Health to set up a redress scheme
by regulations to apply to cases involving qualifying liabilities
in tort arising out of hospital care provided as part of the NHS
in England (wherever that care is provided) and to set out the
detailed rules governing the operation of the scheme in secondary
legislation.
17. The proposed primary powers enable the
scheme to be set out within a single framework of regulations
as a real alternative to litigation; one that will be more readily
understood by patients and NHS staff alike. New primary powers
will enable the Scheme Authority to seek financial contributions
from participating local bodies and enable these to be used to
fund the Redress Scheme. Duties could not be imposed on FTs and
independent providers other than by primary legislation. Using
primary legislation ensures that regardless of which type of organisation
provides the care, any hospital service provider within England
can be required to operate the scheme.
18. Placing detailed rules in secondary
legislation will allow the scheme to be more easily amended. It
also ensures that there is the necessary flexibility to adapt
the scheme in order to reflect the changing ways in which NHS
services are delivered, and limits the technical and administrative
detail that appears in primary legislation. In doing this, the
NHS Redress Bill follows the traditional structure of NHS legislation
in setting out the overall framework in the provisions of the
Act but being less prescriptive in primary legislation as to the
detail of what the Secretary of State or NHS bodies must do or,
indeed, how they must do it.
19. The NHS Redress Bill does not make any
fundamental amendments to the existing law relating to clinical
negligence, but augments it by providing patients with the option
of an additional mechanism for obtaining redress. The scheme does
not remove a person's right to litigate if that is what they want
to do. If a person rejects an offer under the scheme or refuses
to participate in it, it will be open to them to go to court and
pursue a claim for negligence in the normal way.
20. It is intended that an NHS redress scheme
will provide a mechanism for the swift resolution of qualifying
lower monetary value claims in tort arising out of hospital services
provided as part of the NHS in England (wherever those services
are provided), without the need to go to court. Higher value,
more complex cases, will continue to be dealt with exclusively
through the current legal arrangements. While the maximum level
of financial compensation payable under the scheme will be reviewable,
the initial upper limit is proposed at £20,000. This is because
lower-value cases tend to have higher proportional legal and administrative
costs under the current system.
21. Only cases involving liabilities in
tort in respect of personal injury or loss arising out of a breach
of a duty of care and arising as a consequence of any act or omission
by a health care professional will be covered by the scheme. The
intention is not to create new rights, but to improve access to
justice for those with rights that already exist under current
law. Claims without merit will be rejected.
22. The liabilities covered by the scheme
are those of the organisation that is providing (or commissioning)
the care. The scheme does not cover any personal liabilities of
individual healthcare professionals who provide services under
a contract of employment. Hospital services provided by individuals
under such contracts will be covered by the scheme as a result
of the liability of the organisation providing the services. The
scheme covers vicarious liability: the most common ground upon
which a hospital authority may be held responsible for injury
to patients is by virtue of an employer's vicarious liability
for the torts of an employee committed during the course of employment.
23. The same tests for negligence will be
applied to cases under the NHS Redress Scheme as are applied under
current tort law. The test of negligence will therefore be the
same as that currently applied in clinical negligence cases: presently
the "Bolam test", which provides that a professional
is not negligent if their practice was in accordance with that
accepted as proper at the time of treatment by a responsible body
of medical opinion, even though other doctors adopt a different
practice, and the "Bolitho test", which provides that
in applying the "Bolam test" it will only be in rare
cases that a court determines that a practice considered appropriate
by a responsible body of medical opinion is negligent. Only if
it can be shown that the professional opinion is not capable of
withstanding logical analysis, is the judge entitled to hold that
the body of opinion offered is not reasonable or responsible and
hence the action is negligent.
24. It would not be appropriate for the
Bill to set out that the "Bolam" and "Bolitho"
tests will be applied to cases under the redress scheme. The Bill
makes it absolutely clear that the redress scheme only applies
to qualifying liability in tort under the law of England and Wales.
It is important to emphasise that the law of tort in England and
Wales is not a static creature: the tests that are used today
such as "Bolam" and "Bolitho" may change as
the case law develops. Being specific about the tests to be applied
on the face of the Bill would prevent the redress scheme from
evolving with the law of tort in England and Wales, and would
therefore inhibit the necessary flexibility for the tests applied
to cases under the scheme to match those applied by the courts
in civil proceedings.
25. Where compensation is appropriate, the
NHS Redress Scheme will provide a real alternative to litigation
for the less severe cases, removing the lottery and risks of litigation,
whilst reducing the general burden of unnecessary legal costs.
It will provide a fair, equitable and appropriate response to
people who have been harmed in the course of their health care.
In this respect, the scheme will be consistent with wider Government
policy on improving access to justice.
SUPPORT FOR
PATIENTS
26. It is intended that where an offer of
redress is to be made, appropriate support will be provided to
the patient. We intend to ensure patients are able to make a genuine,
informed choice when presented with options and clause 8 of the
Bill seeks to do just that.
27. Clause 8 sets out that a scheme may
make provision for free legal advice to be provided in connection
with proceedings under the scheme. It is intended that the scheme
will provide for legal advice to be given free of charge to the
patient or other person eligible for redress under the scheme,
for the purpose of assessing whether or not an offer of financial
compensation under the scheme is reasonable and equivalent to
what the patient would have received through the courts.
28. The scheme may also provide that free
legal advice has to be supplied by a provider included in a list
held by a particular body. To ensure independence, it is envisaged
that the scheme might, for example, provide that a body such as
the Legal Services Commission will compile and maintain a list
of independent providers of legal advice, with whom the scheme
authority will have made arrangements for the provision of such
advice at a flat rate.
29. Clause 8(1)(b) provides flexibility
for the provision of other services that may help to reach an
agreement to settle. It is intended that further consultation
with stakeholders will take place to identify what services might
be most appropriate and effective for these cases. However, options
may include mediation services or the services of a jointly instructed
independent medical expert.
30. It is essential that patients have appropriate
support throughout proceedings under the scheme to be able to
make a positive contribution to resolution and to raise any concerns
they may have with the appropriate body. Clause 9 of the Bill
requires the Secretary of State to arrange for the provision of
assistance to individuals seeking redress, or who intend to seek
redress under the scheme, to the extent that she thinks that it
is necessary to meet reasonable requirements; we intend to consult
further on this aspect when drafting secondary legislation. This
assistance may take the form of representation or some other form
of assistance.
31. In making any arrangements pursuant
to clause 9, the Secretary of State is required to have regard
to the principle that arrangements for the provision of assistance
should, in so far as is practicable, be independent of persons
to whose conduct the case relates or who are involved in dealing
with the case.
32. It is intended that patients and appropriate
representatives whose cases are being considered under the scheme
will be able to access support at any time during the process
from Patient Advice and Liaison Services (PALS) and Independent
Complaints Advocacy Service (ICAS) type arrangements. It is intended
that these arrangements will resemble those currently in place
to support patients through the NHS complaints process.
33. Until the point at which an offer of
redress is accepted under the scheme, the patient will retain
the right to litigate. However, we want to place the emphasis
on getting things right before litigation is initiated. The assistance
this clause offers, coupled with the free legal advice that patients
will receive in relation to their offer under clause 8, will assist
in ensuring patients receive the best possible outcome.
Department of Health
December 2005
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