Written evidence from Hill Dickinson LLP
Hill Dickinson LLP is a national firm acting for
a wide range of insurance and institutional clients. They also
themselves act for Health service clients including the National
Health Service Litigation Authority and therefore have particular
regard in this submission to the sphere of clinical negligence
reason for increased numbers of complaints - changing complaint
system captures more complaints, increased public awareness, higher
patient expectations, complaints co-existing with litigation and
low morale in current economic climate.
effectiveness of new complaints system - PALS, revised timescales,
complainant-led system and face-to-face meetings work well; wide
interpretation and requirement to log expressions of dissatisfaction
as complaints in certain circumstances does not work well.
parts of new complaints system more effective - more complaints
resolved at local resolution but ombudsman does not always share
how decision was made.
functions as an effective gateway to the complaints system assisting
Foundation Trusts do not report the number of complaints but the
reasons are not clear; speculatively there may be administrative
factors involved. Complaints are however reviewed with the aim
of lesson learning.
views concerning Government plans for future complaints/handling
arrangements. Current process with ICAS functions well and does
not need replacing; to do so would lose the experience and knowledge
already gained. Health Watch may lack the understanding and experience
to deal with complaints.
systems being established to process data from complaints into
new commissioning arrangements. Uncertainty as to how a variety
of systems will interact. A unified approach may be more appropriate.
rise in cost of litigation against the NHS - amount paid in respect
of Claimant's costs increasing substantially.
reasons for the rise in litigation costs - delays in the current
legal system, funding of claims by way of Conditional Fee Agreements
and/or ATE insurance and failure to use Alternative Dispute Resolution
in use of Conditional Fee Arrangements corresponding with rise
in costs reserves for Claimant's costs. Steady increase over recent
years in the use of CFAs for Clinical Negligence cases. Funding
proposals to remove Legal Aid for Clinical Negligence cases may
mean that yet more cases are funded by way of CFA (and costs increased).
interaction between litigation and development of an open reporting/learning
culture in the NHS. Exact impact unclear. Arguments that it may
assist in developing an open reporting/learning culture but also
arguments that it may hinder.
Redress Act considered to be a sensible and pragmatic means of
"fast tracking" lower value cases. Possibility of extending
the upper monetary limit to, say, £30,000-50,000.
of a statutory right for "treatment injury" without
needing to prove negligence inappropriate and contrary to established
legal principles. Would lead to inequality depending on the mechanism
by which a person sustained injury and risk of substantial increase
in cost to the public purse.
of Alternative Dispute Resolution (rather than mediation as such)
to be encouraged prior to litigation with likely reduction in
costs. Logistical difficulty in timing ADR prior to proceedings
when Claimants take on average almost two years to investigate
a Clinical Negligence claim before serving the Letter of Claim.
1. The reason for the sharp rise in NHS complaints
In an effort to provide evidence as to the reasons
for the sharp rise in complaints we surveyed some of our clients
who are either PALS or Complaints Managers. The main reasons are
likely to be as follows:-
- 1.1 Recording of complaints. When
the new complaints system was introduced on 1 April 2009 the manner
in which complaints need to be recorded has changed. Section 13(1)
of the Local Authority Social Services and National Health Service
Complaints (England) Regulation 2009 ("The Regs") states
"A complaint may be made orally, in writing or electronically".
Where a complaint is made orally, the responsible body to which
the complaint is made must make a written record of the complaint
and provide a copy of the written record to the complainant. Therefore
previously whilst oral complaints may have been made, there was
no duty for it to be recorded as a complaint.
- 1.2 Increased awareness. Section 16
of the Regs state that "each responsible body must make information
available to the public as to its arrangements for dealing with
complaints and how further information about those arrangements
may be obtained". In the circumstances the general public
are likely to be more aware that there exists recourse for any
complaint they wish to raise.
- 1.3 Increased or higher (often unrealistic)
expectation. Complainants often base their arguments on information
that they have derived from the Internet which may not be based
on any medical experience/application. Therefore if the outcome
is not as they expected then they may complain.
- 1.4 Duty on Trusts to investigate complaints
and claims in tandem. Under the 2006 regulations where a complainant
advised the investigating body that they intended to bring a claim
for compensation there was no obligation on an NHS body to investigate
the complaint. This exception does not exist under the 2009 regulations.
Therefore if a complainant is contemplating or in the process
of instructing solicitors to investigate a clinical negligence
claim on their behalf the NHS body must still investigate the
complaint internally unless it can be shown that there is a significant
prejudice to the NHS body.
- 1.5 Current economic climate. One
of our clients suggested that due to the current economic climate
leading to rationalisation of staffing levels due to cut backs
and changes to staff's contractual agreements regarding sickness
and absence pay there is a general low morale amongst staff which
may be affecting the treatment being provided, ultimately leading
to more complaints.
2. The effectiveness of a new complaints system
introduced on 1 April 2009
2.1 The data received from clients suggest that
on a scale of 1 to 5 the average effectiveness is 3.5. That said
the responses ranged from 2 to 5 and therefore there appears to
be very little consensus. For those who responded with 5, their
view was that it was extremely effective if it was implemented
2.2 The specific aspects which were effective
- 2.2.1 The role of Patient Advice and Liaison
Services (PALS) as a "gateway" to the complaints
system (for further information see below).
- 2.2.2 The new timescales. Under
the old regulations, a complainant had to register a complaint
within six months and a response had to be provided within 25
days. Under the new system complainants have 12 months from the
occurrence giving rise to the complaint or from the time that
they become aware of the matter. The Complaints Manager retains
discretion to investigate complaints later then this if there
are good reasons for the delay and it is still possible to carry
out the investigations. In terms of investigation and response
the responsible body to whom a complaint is made must investigate
the complaint in a manner appropriate to resolve it speedily and
efficiently and during the investigation keep the complainant
informed, as far as reasonable practicable, as to the progress
of the investigations (Section 14). There is no specific timescale
in which a complaint needs to be investigated and is meant to
be proportionate to the complaint that is made.
- 2.2.3 The flexibility. The new complaints
procedure seeks to ensure that the process is much more complainant
led and flexible so that the NHS body is clear on what it is that
the complainant requires as an outcome and is aware of the steps
being taken to investigate the complaint. Further the new process
seeks to ensure that lessons are learnt from the complaint made
with a view to seeking continuous improvement.
- 2.2.4 Face to face meetings
were very positive and worked well.
- 2.2.5 A simplified system which is
designed to make complaints handling open and accountable by creating
a system which applies to both health and adult social care. Further
if a complaint is made to a service provider about a service the
service provider may either investigate the complaint themselves
if felt to be appropriate or the service commissioner to investigate
the complaint themselves.
2.3 In terms of areas that did not work as well,
our clients were of the view that the fact that an expression
of dissatisfaction which had not been resolved within 24 hours
had to be logged as a complaint was time consuming and unnecessary.
2.4 One client said that the procedure is all
but in name the PALS model of practice. Currently its application
is open to such a wide level of interpretation it is hard to judge
if it is more effective than its predecessor. It does enable NHS
organisations to take a critical look at itself but this in itself
will not always improve complainant's satisfaction levels.
2.5 Finally one of our clients (and we are of
the view that it is likely to be mirrored by other clients) thinks
that investigating a complaint alongside a clinical negligence
claim is ineffectual and potentially contradictory.
3. The effectiveness of the constituent parts
of the complaints system
3.1 The purpose of removing the Healthcare Commission
and creating a two tiered service rather than a three tiered service
was to simplify the procedure. The response to our survey was
mixed. One client Trust was of the view that many more complaints
are resolved at a local resolution without referral to the Ombudsman.
It would therefore appear that this system is much more effective
than it was previously.
3.2 One client however said that local resolution
has not made any significant changes as the constant is whether
the complainant gets the answer and/or action they want as a result.
3.3 In terms of referral to the Ombudsman, some
clients felt that it worked very well. One complaint manager said
that he and other managers had received mixed interpretations
of the complaints procedure from the Ombudsman but the general
feeling was that it was a significantly better service than was
provided by the Healthcare Commission.
3.4 Further one client said that the Ombudsman
does not always share how she comes to her decision and that she
has made criticisms when taking a creative/individualised approach
to resolve a concern.
4. The role of PALS as a gateway to the complaints
4.1 From our questionnaire the majority of the
clients who responded to the survey felt that the role of PALS
was very effective and was of assistance to resolving initial
"concerns" rather than complaints which need
to be recorded under the 2009 regulations.
4.2 One trust client however advised that they
no longer have a PALS team and the PALS and complaints have merged
to form a Customer Services team.
4.3 One client trust felt that PALS was undervalued
and under resourced nationwide by NHS organisations.
4.4 It would appear therefore that there may
be scope for further use of the PALS system.
5. The failure of some Foundation Trusts to
report numbers of complaints
5.1 The data we have obtained from our client
Trusts are that they do report the complaints. It is difficult
to comment on the reasons behind failure of some Foundation
Trusts to report the numbers of complaints. The authors would
speculate that there may be administrative factors involved. The
response from our client Trusts suggests that they review the
complaints with a view to lesson learning including review at
Trust Board level and senior clinical effectiveness meetings.
6. The Government's plans for future complaints/handling
6.1 Our client Trusts have expressed a mixed
reaction to this point. The feedback is that ICAS are very effective
in taking on a support and advocacy role for individuals who wish
to make a complaint. The concern is that the remit and function
of the local Health Watch is felt to be currently too vague to
gain assurance in their ability in this function and some concern
has been expressed that members of LINks would be able to take
on the additional role of advocacy within Health Watch. It is
questioned whether they would have the knowledge or expertise
to deal with Complainants, NHS staff or the complaints procedure
and that LINks nationally does not appear to have had time to
embed its own approach of becoming a representative of the community
it serves before taking on such a significant additional workload.
6.2 The general thread is that the current process
with ICAS provided by The Carers Federation works well and does
not need replacing. There is concern that there has been an over-estimation
of what Health Watch could achieve. Trusts have built up a relationship
with their local ICAS staff who in turn have the experience and
knowledge of the NHS and complaints procedure.
6.3 In broad terms, the concern seems to be that
the current system with ICAS works well and that reviewing the
system would only disrupt its effectiveness and require a substantial
learning curve. The knowledge which has been gained would be lost.
The overall view of our client Trusts is that establishment via
the Local Authority of a local Health Watch/Health Watch England
would increase the number of complaints brought with the function
of the PALS Team being diminished so as to establish the Health
Watch. Further concern is expressed that poor handling of the
complaints by Health Watch would impact on the number and there
may be a significant time lapse before Health Watch fully appreciates
the challenges of complaints management. There is concern that
individuals may look to drive the agenda of what Health Watch
focuses on but an overriding concern that Health Watch would lack
the understanding and experience to deal with the complaints.
7. How data from complaints will feed into
the planned new commissioning arrangements
7.1 The overall view expressed by our client
Trusts is that they have arrangements in place for "information
sharing" of complaints. For some Trusts the role is undertaken
by the Associate Medical Directors (who are GPs and members of
practise-based commissioning consortia) whereas other Trusts as
regional providers collate the standard data such as the timeframe
in which complaints are resolved and then provide bespoke information
depending on what the commissioner seeks. Other Trusts report
having a mixture of methodologies.
7.2 There must be some concern that with numerous
different arrangements the benefits of information sharing will
be weakened or lost. A unified approach may be more appropriate.
1. The cost of litigation against the NHS
1.1 It is undisputed that the cost of litigation
against the NHS is on the rise.
1.2 In 2009-10 6,652 clinical negligence and
4,074 non-clinical negligence claims against NHS bodies were received
by the Authority. This was an increase from 6,088 clinical negligence
and 3,743 non-clinical negligence claims in 2008-09.
1.3 £878 million was paid in connection
with clinical negligence claims during 2009-10 (which can be broken
down as £651 million for CNST cases, £135 million ELS
cases and £954,000 ex Regional Health Authority cases). This
is an increase from £769 million which was paid in connection
with clinical negligence claims in 2008-09.
1.4 This represents a significant rise from payments
made in clinical claims in 2004-05 when only £503 million
was paid by the Litigation Authority.
1.5 The increase in payment is mirrored by the
increase of legal costs paid to Claimant and Defence lawyers.
That said the costs claimed by Claimant solicitors continues to
be significantly higher that those incurred by Defence solicitors.
In 2009-10 the NHSLA paid over £163 million in total legal
costs against these claims of which £121 million (74% of
the total costs expenditure) was paid to Claimant lawyers.
1.6 This represents a significant increase from
2004-05 when the total legal costs paid to Claimant and Defendant
solicitors was £143 million of which approximately £85
million was paid to Claimant solicitors (59%).
2. Reasons for the inflation of litigation
costs in recent years
2.1.1 Delays are a fundamental cause of additional
expenses and therefore there is much to be said for robust deadlines
and timetables. The authors consider that there has been an ongoing
erosion of the obligations upon parties to comply with procedural
deadlines under the Civil Procedure Rules and those established
in the Court directions.
2.2.2 The perception amongst practitioners appears
to be generally that there is little risk of any adverse order
as a consequence of "minor" delays in filing
court documents. There is, for example, no longer any real expectation
that a Claimant will be struck out for failing to serve proceedings
within 4 months of issue, even where the delay is many months
2.2.3 Greater concern, it is suggested, needs
to be placed on the prejudice to the judicial system as a whole
as a consequence of widespread delays and disregard for procedure
deadlines and the result in inflation costs as well as the impact
on judicial resources.
2.2 Conditional Fee Agreements/ATE insurance
2.2.1 There is no doubt that conditional fee
arrangements have allowed in many cases a gross disproportion
between costs and damages to exist. In the clinical negligence
field, it is not at all uncommon to find that hourly rates of
£300 will be inflated by 100% to leave Claimant firms making
enormous profits even allowing for the cross subsidy of failed
2.2.2 The market has wholly failed to regulate
the level of success fees in those cases falling outside the fixed
success fee regime. For example, in clinical negligence claims
the vast majority of practitioners present bills with a 100% success
fee uplifts as if they were entitled as a right by the nature
of the work, as opposed to the facts of a particular case.
2.2.3 Little wonder we would suggest that there
has been so much satellite litigation in this area, as insurers
have struggled to undo the damage the new funding system has caused.
2.2.4 Of course the Health Select Committee will
be aware that the voices in opposition to this injustice have
been growing for some time.
2.2.5 Following Lord Justice Jackson's cost review
on 16 November 2010 the government published two consultation
papers setting out comprehensive proposals. The one which is of
interest to this submission is the reform of civil litigation
funding generally. It is readily acknowledged within this paper
that there is a need to rebalance the current situation, where
presently Claimants in many circumstances are permitted to litigate
with no personal risk in relation to costs.
2.2.6 In respect of alternative funding the consultation
paper is in all material respects a ringing endorsement of the
proposals advanced by Lord Justice Jackson in his seminal review,
completed earlier this year.
2.2.7 The principle proposal is to end the recoverability
of success fees and ATE premiums. If this proposal is ultimately
adopted, then these costs will have to be met by the Claimants
from their damages. Success fees will be capped at a percentage
of damages (excluding future damages).
2.2.8 Importantly the main requirement for ATE
insurance should be removed by the introduction of one way costs
shifting. Essentially this will mean that in all but exceptional
circumstances even if successful, the Defendants will not be able
to recover their costs from Claimants. However, all the available
evidence suggests that the net effect would be significantly in
the Defendants' favour.
2.2.9 It is also intended that "contingency
fee arrangements", by which a Claimant's solicitors will
charge their fees as a percentage of the damages recovery should
be permitted in all civil litigation.
2.2.10 The consultations run until February 2011
and the Government will then publish its responses and presumably
in due course draft legislation. The papers do not set out a timescale
for implementation but the inference is that this will be within
the current parliamentary term.
2.2.11 Clearly whilst this is welcome news to
proponents of Lord Justice Jackson's review the Claimant lobby
will oppose the changes vociferously no doubt with reference to
principles rather than profit.
2.3 Failure to use alternative dispute resolution
2.3.1 In his final access to Justice Report,
Lord Woolf recommended that the unreasonable refusal to participate
in alternative dispute resolution ("ADR") should
appropriately be taken into consideration when the issue of costs
was for determination. The overriding objective includes an obligation
on the Court to encourage the parties towards ADR.
2.3.2 It is now common place for many District Registries
to adopt Master Ungley's draft directions on the issue of ADR,
or a version of the same, which while stopping short of compelling
participation, provides that the Court must be provided with justification
by any party who refuses to participate. In Manchester, the clinical
negligence District Judges order a joint settlement meeting in
all cases with a value in excess of £100,000.
2.3.3 Still, since before the inception of the
Civil Procedure Rules, there were calls for mandatory ADR and
the others considered that there would be merit in revisiting
this, whilst bearing closely in mind that ADR does not include
only mediation. Mandatory ADR would not breach article 6 as the
parties can ultimately proceed to Trial.
2.3.4 It is the authors' view that by proceeding
to ADR this could potentially lead to a significant saving of
2.4 Current economic climate
2.4.1 Historical data suggests that in a time
of recession the number of claims increase. The authors would
refer the readers to number 1 above.
3. The impact of conditional fee arrangements
on litigation against the NHS
3.1 It is indisputable that litigation has increased
as a result of conditional fee agreements. The authors would suggest
that one such reason is that for many Claimants there is no personal
risk in relation to costs as the costs is borne by the insurance
companies rather than the individual.
3.2 Hill Dickinson's data indicates that over
the six year block 2005-10 the proportion of new cases in Employer's
Liability/Public Liability claims funded by way of a Conditional
Fee Agreement or else a Conditional Fee Agreement combined with
After the Event Insurance have remained broadly level at around
3.3 However, in terms of the clinical negligence
cases, the proportion of new cases which are funded by way of
a Conditional Fee Agreement or else a Conditional Fee Agreement
combined with After the Event Insurance have substantially increased
up to the 40-45% mark. Claimants are of course obliged to consider
alternative methods of funding and it is submitted that a proportion
of Clinical Negligence cases would be funded by way of Legal Services
Commission funding (Legal Aid). However, proposals to remove Legal
Aid for Clinical Negligence cases would we submit lead to an increase
in the proportion of claims funded by way of Conditional Fee Agreements
(or Conditional Fee Agreements combined with After the Event Insurance).
3.4 When the average reserves for Claimant's
costs are compared across the years the picture is more telling.
The reserves for Employer's Liability/Public Liability cases have
remained broadly the same, on average £12,000-15,000 per
case. However, for the Clinical Negligence cases the average reserve
per case has substantially increased from around £36,000
- 3.5 The clear picture is that the legal costs
of claims (Claimant's costs) are increasing substantially.
4. The effects of litigation on the development
on an open reporting and learning culture in the NHS
4.1 The response from our client Trusts on the
effects of litigation on the development of an open reporting
and learning culture within the NHS was very variable. Some reported
no effect. Some reported that litigation hindered an open reporting
and learning culture. Others reported that it helped following
receipt of a claim with risks being identified and reported to
the Risk Manager who would take action to address issues and ensure
the incident does not occur again. Such would however appear more
a benefit from a risk management perspective rather than development
of an open reporting culture in the NHS.
4.2 The impact of litigation on an open reporting
and learning culture is clearly complex. The authors can see rational
grounds to argue that it is unlikely to lead to an open reporting
culture (fear of sanctions, involvement in litigation, impact
on career development). Equally there are arguments that it would
assist with an open reporting and learning culture (exposure of
systemic issues enabling risk management to deal with the same).
5. The Government's intentions regarding implementation
of the NHS Redress Act
5.1 The NHS Redress Act 2006 affirms Parliament's
view that fault-based liability should remain the basis of compensation
for Clinical Negligence. We would endorse that general principle.
There would appear to be no justification for creating an exclusive
class of cases which do not need to fulfil the usual criteria
so as to receive compensation. Such would create anomalies with
the person injured through no fault of their own in a motor accident
being left with the same outcome as the person who suffers the
injury as a consequence of Clinical Negligence. More starkly,
the patient who suffers a poor outcome at a private hospital would
not receive compensation in the absence of negligence whereas
one who suffered a poor outcome at an NHS hospital would and would
not need to show any negligence on the part of the doctors. Such
cannot be right.
5.2 The premise of the Redress Act to provide
a consensual "fast track" for lower value claims seems
eminently sensible and should, in the authors' views, lead to
a reduction in the time of litigation and a consequent reduction
in the costs in those cases to which it applies.
5.3 The upper limit for monetary compensation
under the Redress Act is currently £20,000. Consideration
could be given to the possibility of increasing the threshold
to, say, £30,000 or £50,000.
6. Possible benefits of a statutory right
to compensation for "treatment injury" from an independent
fund without the need to prove negligence as required under tort
6.1 As set out above (5.1), the authors do not
see that there is any merit in creating an exclusive class of
cases for which the basis of compensation would be different.
Currently, negligence must be proved for an individual to receive
compensation. The authors can see no logical justification to
create a class of people who suffer injury as a consequence of
treatment to receive compensation as of right whereas those with
identical injuries suffered otherwise than by way of treatment
would not receive the compensation. There is also the more stark
contrast between the patient who suffered non-negligent "treatment
injury" at a private hospital who does not receive compensation
and one who suffers the same at an NHS hospital who does receive
6.2 The authors express concern that to create
a statutory right to compensation for "treatment injury"
might serve to reduce some legal costs (in not having to establish
whether or not negligence occurred) but other costs will remain
as issues of causation (what the "treatment injury"
has caused and how the patient's outcome is any different than
it would have been in any event) as well as quantification issues
will still need to be looked at.
6.3 Removing negligence from the test for compensation
will help to speed up an individual case but the concern is that
all patients with a less than perfect outcome will pursue
a claim and the overall cost to the public purse will substantially
increase. The increased numbers of cases will most likely lead
to a slowing down of dealing with cases overall.
6.4 The authors are conscious that there have
already been a number of consultations and changes proposed regarding
the funding of legal claims (including the provision of public
funding for Clinical Negligence claims) as well as consultations
and proposals regarding the costs system. Those proposals are
of course relevant and the author's view is that the proposed
costs reforms will of themselves hope to reduce costs to the public
purse. The presence of a statutory right to compensation for "treatment
injury" without having to show negligence could however easily
7. Encouraging the use of mediation before
litigation is initiated
7.1 Based on our current data, Claimant's solicitors
take on average 22 months to investigate a Clinical Negligence
claim before serving a Letter of Claim setting out the basis of
the case. The Defendant will then have to respond within three
to four months. Often proceedings will have to be issued because
of approaching expiry of the limitation period (three years).
7.2 The authors' view is that the use of mediation
or other forms of Alternative Dispute Resolution ("ADR")
before litigation is initiated is pragmatic and appropriate.
7.3 The authors do not think that mediation as
such should be enforced but rather Alternative Dispute Resolution
so that the parties are not tied to having to follow the mediation
route which can be costly. However ADR should be encouraged which
could include mediation.
7.4 The timing of such ADR must however be appropriate.
ADR would only be appropriate after the Claimant's Letter of Claim
has been served so that the Defendant can know the case it has
to meet. If ADR is to lead to savings in costs and reduction in
Court time then it will need to take place prior to proceedings
being issued. There will be benefits to using ADR pre-proceedings
in certain cases although the authors can envisage that some cases
would not be suitable for ADR at this time. The difficulty with
ADR prior to litigation is the timescale required for investigating
claims as set out above.
13 Information taken from NHSLA website Back
Information taken from the NHSLA's report and accounts 2010, page
Information taken from the NHSLA's report and accounts 2010, page
Information taken from the NHSLA's reports and accounts 2010,
page 17. These figures cannot be equated with the figures for
total expenditure claims in 2009/10 because they relate only to
claims closed during this year Back
Information taken from the NHSLA's report and accounts 2010, page