In June 2003 the Chief Medical Officer published his much awaited report “Making Amends” which is intended to overhaul the system of making compensation claims against the NHS. There was public perception that damages and costs were too high.

In the Autumn of 2005 the government introduced the NHS redress bill. This is an outline bill and most of the detail of how the system would work is reserved to secondary regulations which were planned for drafting in the summer of 2006. The Department of Health published a statement of policy in 2005 outlining how they thought the system would work.

All the radical elements of making amends have been dropped: no fault compensation for birth damage victims; duty of candour for nursing and medical staff; independent assessment.

The Bill is about a scheme for settling claims with the aim of reducing legal costs. The proposals are:

  • Applies to claims worth less than £20,000, after deducting benefits and not taking into account cost of medical care.
  • Any further medical care required will be provided by the NHS, either the Trust concerned or another Trust. No private medical costs.
  • Only applies to hospital care, not primary care like GP’s and dentists; Ordinary law of tort still applies – breach of duty and causation have to be established. 
  • Only applies to claims after the Act is passed.
  • Either patient’s complaint, or an NHS Trust, can start off the process
  • Trusts have discretion to get a report from a medical expert selected by them
  • Limitation will be “frozen” while the claim is going through the redress scheme.
  • No appeal from Redress decision. A dissatisfied patient can either start court proceedings (unless they have accepted an offer) or make a complaint of maladministration to the Health Service Commissioner (Ombudsman).
  • Public funding decisions will be affected. The Legal Services Commission can have regard to the “reasonableness” of not pursuing an application under the NHS Redress scheme, or rejecting an offer made under it.
  • Legal advice. People claiming under the Redress scheme will not get the costs of legal advice to investigate the strengths or value of their claims. The scheme envisages ICAS being able to provide any necessary advice.
  • Legal advice about whether to accept any offer made will be paid for, at a flat fee, using a lawyer drawn from a panel of names kept by the Legal Services Commission.
  • Claims will be investigated by the same local Trust staff as investigate complaints and current claims. The NHSLA will provide guidance and advice on offers.
  • The scheme will run for 3 years and then be assessed as to its objectives. The stated objectives are:
    1) Increased patient satisfaction.
    2) Reduction of number of cases (“evidence of local learning”). 
    3) Reduction of legal costs of claims.

Comment

The scheme has been roundly criticised. There is no independent element as occurred in Resolve (the pilot England scheme) or Speedy Resolution (current Welsh scheme). The NHSLA will be investigator, prosecutor, judge and jury. As it appears the same people will be dealing with the investigation and the offer decisions as currently deal with complaints and claims, it will be interesting to see whether more people get offers than get them at the moment when letters of claim are sent.

Legal advice: It has been pointed out that ICAS are in no position to advise about the finer points of tort law. Patients are disadvantaged by not having legal advice other than on the offer. As the offer advice is a flat fee there is little to be little scope for a legal adviser to investigate causation and litigation risk issues, as well as valuation.

The Department of Health has dressed up the Redress scheme as importing a “culture change” into the NHS, in that Trusts will be encouraged to initiate claims and “local learning” will lead to reformed practice and procedure to reduce the number of incidents.

Given that no new resources are going to be allocated to Trusts and the NHSLA to deal with fact finding and investigation it seems difficult to see how the scheme will in practice lead to any more offers in settlement than are made already, other than to leave patients with the risk of not recovering the cost of legal advice on claims under the scheme.

Accordingly to the Department of Health, claims settled for £20,000 or less constitutes 75% of the settled claims against the NHS and recently as the number of such claims has averaged 4,100. The major concern is that costs of claims settled at this level can approach or exceed the quantum of damages. 

Lord Howe, Conservative peer, speaking in the House of Lords debate, said:

“the NHSLA ..will be tasked with doing …work that it has been doing for years.. We should not allow ourselves to be seduced by the idea that the goal provides a genuinely novel alternative to litigation. Stripped to its essentials it is a repackaging exercise, the same system with a few knobs on”.