Written evidence from the Medical Protection
Society (CAL 12)|
increase in complaints is not wholly attributable to an increase
in patient dissatisfaction.
new complaints system can work well where it is fully understood,
properly supported and correctly followed.
must be adequate resources to deal with complaints properly and
to a high standard.
is sought on how complaints about commissioning will be managed,
and how the complaints role, currently performed by PCTs, will
be carried out in future.
compensation levels for the most severely injured are now amongst
the highest in the world, including most states in the U.S.
highest UK settled claim to date was over £8 million.
litigation costs are due to increasing claims, increasing legal
costs, damages inflation, and legal and regulatory change.
support the recommendations of Lord Justice Jackson in his review
of civil litigation costs.
arising from NHS treatment should be exempt from the provisions
of the Law Reform (Personal Injury) Act 1948.
support and advocate the development of an open reporting and
supports proposals which enable early identification of adverse
incidents. Thorough investigation and fairness for all involved
must be central to any new scheme.
fault compensation schemes can appear attractive but constructing
a scheme is highly complex and most studies show them to be prohibitively
1. The Medical Protection Society (MPS) is the
leading provider of comprehensive professional indemnity and expert
advice to more than 270,000 doctors, dentists and other health
professionals around the world. We have over 100 years experience
and operate in 40 countries around the world. In the United Kingdom
around 170,000 doctors, dentists and other healthcare professionals
are members representing around 50% of all doctors and 70% of
2. As a mutual, not-for-profit organisation we
offer members professional support and expert advice, on a discretionary
basis, with legal and ethical problems that arise from their professional
practice. This includes clinical negligence claims, disciplinary
and professional regulatory investigations, inquests, complaints
and general ethical and professional advice.
3. We advocate a culture of openness and provide
training in open disclosure and better communication for health
professionals. In our publications we promote a learning culture,
making use of our claims experience to highlight common mistakes
and spread awareness of specific risks.
The reasons for the recent sharp rise in NHS complaints
4. There are several reasons for the recent increase
in the number of complaints. We do not believe it is wholly attributable
to an increase in patient dissatisfaction.
5. There has been a change to the definition
of a complaint. Prior to the introduction of the April 2009 Regulations
many complaints were dealt with informally as problems through
local Patient Advice and Liaison Services (PALS). Since 2009,
anything that is not resolved within 24 hours is classed as a
complaint. This has resulted in a substantial rise in reportable
6. Cultural changes within the NHS, where feedback
is invited more frequently means patients are generally better
informed about both the care they receive and the complaints process
itself. A further factor is the increased media focus on the performance
of the NHS.
The effectiveness of the new complaints system
introduced on 1 April 2009
7. The process can be effective where maximum
use of the planning stage is made to listen to the complainant's
concerns, apologise, and discuss with the complainant the way
the matter is being handled. Failure to do this, results in misunderstandings
and a lack of focus on the outcomes sought.
8. A particular weakness is the level of training
provided to practices. Historically, this has been provided by
PCTs but stretched resources and their forthcoming abolition has
affected this aspect of their role. This leaves practices isolated
and ill-informed, and needs addressing.
9. There remains considerable anxiety about apologising
or admitting errors, leading to disciplinary action or litigation.
Although members who approach MPS receive advice on these issues
and we actively encourage a culture of openness, we believe there
is a general need for proper resources, support and training to
be provided and centrally coordinated.
The effectiveness of the constituent parts of
the complaints system: local resolution (supported by the Independent
Complaints Advocacy Service); and referral to the Ombudsman
10. The new regulations took away the obligation
on PCTs to provide conciliation, which was often extremely helpful
in resolving complaints. Although some have retained this service,
we find that it is patchy and should be reinstated, possibly through
the new HealthWatch bodies.
11. MPS believes the complaints system can work
well where it is fully understood, properly supported and correctly
followed. Some of the areas where improvement is needed to ensure
over how matters are investigated.
conclusions from the evidence, identifying areas of poor service
and putting this right.
12. In the interests of openness and balance,
the complainant and the complained against should receive the
same information. At present, when a decision is made by the Parliamentary
and Health Service Ombudsman (PHSO) not to investigate a particular
complaint, a detailed letter is sent to the complainant, but the
complained against are merely told that no further action is being
taken. We recognise the PHSO has recently expressed a desire to
share information about complaints more widely, and we note the
Department of Health's intention (set out in Liberating the
NHS: Legislative Framework and Next Steps) to strengthen these
arrangements. We look forward to seeing the detail behind this
proposal in the Health Bill once it is published.
13. The Office of PHSO does not provide a guiding
tariff for financial remedy (although the Local Government Ombudsman
does). We believe there needs to be greater understanding of how
these decisions are made and levels of payment calculated. We
also believe the complaints and clinical negligence systems should
be kept separate; we do not feel it is appropriate for the PHSO
to comment on whether or not a case involves negligence.
The role of Patient Advice and Liaison Services
as a "gateway" to the complaints system
14. We recognise the advantages for organisations
of close, joint working with PALS and we believe this should be
encouraged more than happens presently. There must be adequate
resources to deal with complaints properly.
The Government's plans for future complaints handling
15. We believe greater clarity is needed about
the process for:
who may not wish to complain directly to their GP.
made about a commissioning decision.
How data from complaints will feed into the planned
new commissioning arrangements
16. Consortia and the National Commissioning
Board should have access to regular and anonymised data returns
detailing complaints lodged with commissioned services to inform
future commissioning decisions. Data needs to be meaningful and
collection processes robust.
17. We believe the patient experience should
be simplified so that patients are dealt with fairly. This would
include having a named person with overall responsibility for
The cost of litigation against the NHS
18. MPS provides comprehensive professional indemnity
to GPs, dental practitioners, and doctors working in private capacity
in secondary care. The NHS Litigation Authority (NHSLA) provides
indemnity to clinicians working for the NHS in secondary care,
via their employing hospital trust.
19. MPS indemnity is provided on an occurrence
basis. As long as the clinician was a member at the time of the
incident, help can be requested at any time in the future when
20. The number of claims made against GP members
in England has increased by 39% over the last three years. During
the same period the estimated average claim size has increased
by 22%. Between 2003 and 2009 MPS settled more than 6,600 medical
and dental claims in the UK.
21. MPS has experienced a sharp rise in the size
of claims made against clinicians in England and Wales. The highest
medical claim settled by MPS to date was over £8 million.
The highest UK dental claim settled by MPS was approximately £775,000.
Reasons for the inflation of litigation costs
in recent years
22. Four main factors have led to inflated litigation
claims (social change, encouraged by aggressive advertising by
claims management companies).
legal costs (impact of conditional fees and after the event insurance).
of damages (general inflation but also impact of higher costs
of personal care and additional heads of loss).
and regulatory change, inflating damages (changes in the discount
rate, introduction of periodical payments, and indexing periodical
payments in line with earnings inflation rather than RPI).
23. Without legislative change, inflation of
damages is likely to continue unabated and the question of whether
society can afford such levels of compensation will be left unaddressed.
24. The UK courts apply the established principle
of tort law compensation, to put the claimant in the position
he would have been in but for the wrong done to them; each case
is assessed on an individual basis. It is not the responsibility
of the courts to consider the fair allocation of limited NHS resources
or contrast the care afforded to someone who can establish negligence
with that afforded the victim of disease or other accidental misfortune.
25. Claimants are entitled to claim the full
extent of their loss, so the high earner will recover their loss
of income in full as will the worker on minimum wage. The fact
that the high earner may have been able to protect their level
of income by permanent health insurance is disregarded.
26. Furthermore, in considering a claim made
against the NHS the court does not consider whether care is available
freely from the NHS. Instead the Law Reform (Personal Injury)
Act 1948 provides that the possibility of avoiding medical expenses
by taking advantage of NHS facilities is to be disregarded. Nor
is there any requirement that a claimant awarded damages for a
particular loss, actually spends their award on meeting such costs.
For example, a claimant may recover from the NHS the cost of private
care but then take up free NHS care.
27. UK compensation levels for the most severely
injured claimants are now amongst the highest in the world. A
debate is needed on the levels of compensation that are fair to
the injured patient, and to wider society. Choices can be made
and tort reforms in other jurisdictions have included:
of impairment before claims can be brought, to eliminate low value
on general damages for pain and suffering.
on future loss of earnings claims by reference to average earnings.
discount rates at less conservative levels.
evidence of collateral payments admissible to reduce damage awards.
28. Another reform would be to exempt claims
arising from NHS treatment from the provisions of the Law Reform
(Personal Injury) Act 1948.
The impact of conditional fee arrangements on
litigation against the NHS
29. MPS considers that there is something wrong
with a legal system where lawyers receive more than patients in
72% of claims.
30. The graphs below show damages reaching patients
as a percentage of the total cost of the litigation process:
31. Appendices A and B set out the proportion
of legal costs incurred (in claims against GPs and dental practitioners)
as a percentage of the total cost of the litigation process. They
also show that claimant costs have increased whilst defence costs
have remained at a consistent level. Conditional fee arrangements
have driven up claimant's legal costs to excessive and disproportionate
levels. With claimants litigating free of any exposure to personal
financial risk, there has been no effective constraint upon claimants'
lawyers' charges, nor on the time they incur on cases in which
damages are recovered.
32. We recognise for complex claims, claimants
will require legal assistance. Our concern is not that costs are
incurred but that the costs incurred are often disproportionate
and place an unreasonable burden on defendants.
33. The drivers of legal costs inflation have
been fully explored by Lord Justice Jackson in his recent review
of civil litigation costs. MPS welcomes his recommendations, which
will provide a fairer and more accessible system of civil justice
and increase the proportion of litigation expenditure going to
patients rather than lawyers.
The effect of litigation on the development of
an open reporting and learning culture in the NHS
34. MPS has for many years supported the development
of an open reporting and learning culture. We believe this enhances
trust between healthcare professionals and patients, helps to
prevent mistakes re-occurring and reduces litigation which research
suggests is often the product of distrust and poor communication.
MPS's philosophy is to ensure patients who have a well founded
claim in negligence receive fair and swift compensation. We have
no wish to see fear of litigation obstructing good, open communication
35. MPS works with the NHSLA to encourage giving
apologies where due, confirming they do not prejudice any legal
process. We provide training in open disclosure and better communication
to clinicians. In our publications we promote a learning culture,
making use of our claims experience to highlight common mistakes
and spread awareness of specific risks.
36. Clinicians have ethical and professional
obligations to be open with patients about mistakes. MPS consistently
advises members to be open with patients after a mistake however
we know many are fearful of the consequences. More should be done
to encourage openness, but fear of litigation is not the main
issue; disciplinary and regulatory consequences are a greater
barrier. The investigation of mistakes needs to focus on preventing
future errors rather than attributing blame. There is also a need
for mentoring, training and support.
37. There is evidence that pro-active management
of adverse events reduces complaints and claims. We advocate a
culture of openness through:
openly and fairly with the patient.
adverse events to learn from them.
38. MPS supports clinicians to do this and in
2010 we ran nearly 100 workshops on managing adverse outcomes.
The Government's intentions regarding the implementation
of the NHS Redress Act 2006
39. MPS supports proposals that enable early
identification of adverse incidents and allow claimants to receive
compensation, where appropriate, quickly and efficiently. Thorough
investigation and fairness for all involved must be central to
any new scheme.
40. Shifting the balance away from settling clinical
negligence claims purely with financial compensation toward a
more comprehensive package of redress for patients including an
apology, explanation and remedial treatment, is welcomed. However,
the scheme should be fully tested in secondary care before consideration
is given to implementation in primary care.
41. In his recent review, Lord Young indicated
he would like to explore the possibility of extending the low
value Road Traffic Accident (RTA) scheme to all personal injury
cases including clinical negligence claims and extending the remit
of the scheme from £10,000 to £25,000.
42. Whilst the speed and low costs of the scheme
are attractive, we have concerns that it would not be suitable
for clinical negligence claims which are usually more complex
than road traffic accident claims. We consider that most patients
would require the assistance of a lawyer to help them understand
the process and to evaluate whether their claim had any merit.
Even the most cursory assessment of a claim requires the claimant's
solicitor to seek disclosure of the claimant's medical records,
which may be substantial, and possibly independent expert evidence
to establish the extent of the injuries claimed, in order for
the claimant's lawyer to decide whether the case is suitable for
inclusion in the scheme.
43. It is important to note that a low value
clinical negligence claim can be as complex as a high value claim.
We appreciate that a claimant can only establish that he or she
has a claim with the assistance of a lawyer and that there must
be costs associated with this. Those costs would be considerably
more than the RTA scheme currently allows.
The possible benefits of a statutory right to
compensation for "treatment injury" from an independent
fund, without the need to prove negligence, as required under
44. MPS has closely followed debates around alternatives
to the current clinical negligence compensation system. As an
international organisation, MPS has experience of no fault schemes
in other countries, particularly in New Zealand, which has operated
a no fault system since 1972.
45. We understand the appeal of the no fault
principle and recognise the moral and social justifications for
its introduction. However, experience in other countries shows
that no fault schemes do not incentivise improvements in patient
safety, result in lower compensation levels, and impose significant
costs on the taxpayer.
Encouraging the use of mediation before litigation
46. Mediation is most useful when the parties
have a mutual desire to resolve issues but cannot without assistance
break down the barriers to communication and understanding caused
by hurt, suspicion or resentment between them.
47. Mediation can help avert litigation if used
early and as a true alternative to litigation. Advantages include
the ability to deliver outcomes a patient may value more than
financial compensation, and which litigation rarely delivers,
such as being heard, acknowledged, understood, reconciled, receiving
non-financial redress or knowing that risks will be identified,
addressed and better managed in future. These are also positive
outcomes for healthcare professionals.
48. MPS would welcome more use of mediation as
a tool in the complaints process. It should be considered as a
step in that process, not just a precursor to litigation. We believe
there is great scope for reduced litigation and more satisfying
outcomes if more resource is devoted to resolving disputes in
their earliest stages.
CLAIMANT AND DEFENCE COSTS AS A PROPORTION
OF TOTAL LITIGATION COSTSGP MEDICAL CLAIMS
CLAIMANT AND DEFENCE COSTS AS A PROPORTION
OF TOTAL LITIGATION COSTSDENTAL CLAIMS