Evidence submitted by Action Against Medical
Accidents (AvMA)
INTRODUCTION
Action against Medical Accidents (AvMA) is an
independent charity which has worked for fairer and more effective
ways of resolving disputes following medical incidents for over
22 years. AvMA is widely recognised as being the leading "consumer"
voice on medical accidents and clinical negligence in the UK,
drawing on its direct experience of supporting people affected
by clinical negligence and the experience of the "panel"
of specialist clinical negligence lawyers which it has responsibility
for accrediting and monitoring. Our evidence will be confined
to the committee's consideration of issues as they relate to clinical
negligence and the NHS Redress Scheme.
DOES THE
COMPENSATION CULTURE
EXIST?
In relation to clinical negligence, the answer
to this must be an unequivocal "no". The Department
of Health for England estimates that there are over 850,000 medical
accidents a year in English hospitals. Research evidence suggests
that a third of these involve clinical negligence. Yet, the NHS
Litigation Authority received only 5,609 new claims in 2004-05
(a drop of 10% on the 2003-04 figure, which itself represented
a 20% drop on the year before). A recent article in the Annual
Report of the National Patient Safety Agency[91]
quoted a range of stakeholders, including the chief executive
of the NHS Litigation Authority, as confirming that there is no
compensation culture when it comes to the NHS.
AvMA's experience of dealing with approximately
5,000 enquiries a year from people affected by medical accidents
is that people are extremely reluctant to take legal action or
seek compensation unless (a) this is the only route open to them
to be vindicated in their belief that the treatment was negligent
and/or (b) they desperately need the compensation in order to
meet needs created by the negligence.
AvMA believes that if anything, there is an
"anti-compensation culture" when it comes to the NHS.
People who come to us often refer to the stigma attached to suing
the NHS, doctors or nurses. In view of the low take up of claims,
we believe that this area should be prioritised for improving
access to justice rather than making it harder (which is what
various reforms to the Legal Aid scheme have done).
WHAT HAS
BEEN THE
EFFECT OF
"NO-WIN
NO-FEE"
AGREEMENTS?
AvMA welcomes the availability of Conditional
Fee Agreements (CFA's) for clinical negligence claims, where the
claimant is not eligible for legal aid. The availability of CFA's
have undoubtedly improved access to justice to the wider population.
However, CFA's have not yet come near to meeting their full potential.
The vast majority of claims are still conducted by people who
qualify for legal aid. The reasons for this include the prohibitive
cost of after the event insurance policies to cover the claimant
against the costs of the defendant if they lose. This has also
led to a worrying trend in claimants choosing to litigate on a
CFA without having insurance, which is clearly not in the individual
citizen's or the State's best interests.
Another problem with CFA's as an alternative
to public funding (legal aid) is that because of the insurance
fees and success fees involved, it has been estimated that they
cost over five times as much as legal aid.
IS THE
NOTION OF
A "COMPENSATION
CULTURE" LEADING
TO UNNECESSARY
RISK AWARENESS
IN PUBLIC
BODIES?
We are not aware of "defensive medicine"
being a significant issue in the NHS. However, we believe that
ill-informed suggestions that there is a compensation culture
in respect of health care has a negative impact on the morale
of health professionals as well as stimulating an "anti-compensation
culture" amongst the public.
We believe that it should also be acknowledged
that there are positive "spin-offs" from the NHS having
to meet the cost of compensation. We would suggest that if it
were not for the cost of settling clinical negligence claims the
NHS would not be giving patient safety the priority it does now.
Avoiding compensation claims adds further incentive to improving
patient safety.
SHOULD FIRMS
WHICH REFER
PEOPLE, MANAGE
OR ADVERTISE
CONDITIONAL FEE
AGREEMENTS BE
SUBJECT TO
REGULATIONS?
Yes, we believe tighter regulation of this area
is desirable. We firmly believe that clinical negligence claims
should be handled by specialist clinical negligence solicitors.
Presently, the commonly agreed indicator of such a specialist
is being a member of the AvMA or Law Society specialist panels.
"Claims farming" and inappropriate marketing or advertising
has given personal injury claims a bad name. To some extent this
has rubbed off on clinical negligence and contributed to what
we describe as the "anti-compensation culture".
We believe that there is a danger of the current
proposals in the NHS Redress Bill having the unintended consequence
of stimulating claims management activity in connection with helping
people achieve redress under the scheme, or as an alternative
to it, using CFA's.
SHOULD ANY
CHANGES BE
MADE TO
THE LAWS
RELATING TO
NEGLIGENCE?
The legal definition of negligence, as it applies
to clinical negligence, already places a huge burden of proof
on the claimant. The number of claims in clinical negligence,
and in particular, successful claims, is therefore much lower
than might be expected given the frequency of medical accidents.
We believe there is a strong argument for creating a lesser burden
of proof. The Chief Medical Officer aspired to a fairer test in
his report Making Amends. So far, the scheme proposed in the NHS
Redress Bill relies on the same legal definition of negligence
as is used by the courts. We have suggested an "avoidability
test" or "reversing the burden of proof" as an
alternative methodology for this type of scheme.
THE NHS REDRESS
BILL
AvMA is concerned that as currently provided
for in the NHS Redress Bill, the proposed NHS Redress Scheme could
have the unintended effect of creating more of a litigious/compensation
culture. The scheme would not be effective in reaching fair conclusions
if, as currently designed, it lacks any independence or provision
of specialist medico-legal advice to empower the patient in the
process leading to a decision as to whether an offer of redress
is made. It would not enjoy public confidence and would lead either
to people litigating as an alternative to using the scheme, or
at the end of the scheme, thereby costing the NHS more than would
otherwise be the case. AvMA's more detailed briefing on the NHS
Redress Bill is attached as an annex.
Peter Walsh
Chief Executive
Action against Medical Accidents
November 2005
91 Annual Report 2004-05, NPSA, 2005. Back
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