House of Lords Report Stage
Summary
- Citizens Advice endorses the need for a redress scheme for medical mistakes or malpractice that does not involve civil litigation.
- however this Bill is largely a piece of enabling legislation, which leaves much of the essential design of the redress scheme to Department of Health regulations and policy;
- there is a total absence of detail about how the scheme is likely to operate, who will operate it, how it will be implemented;
- we have reservations about whether this is an appropriate law-making for the process for clinical negligence redress claims under £30,000.
When the Bill was debated at Lords Committee Stage, some further detail of the Government’s policy intentions became clearer, such as whether the scheme will require the establishment of a new organisation, or develop the existing roles either of the NHS Litigation Authority, the Healthcare Commission or the NHS Complaints scheme (ICAS). However key questions still needing to be asked include:
- Who will make the determinations about the value of compensation?
- Is there an expectation of increased numbers of complaints?
- What are the estimated effects on levels of complaints?
- How much additional funding will be provided to the organisation(s) managing the redress scheme and organisations affected by the increase in complaints?
- Does the Secretary of State have a timeframe for the commencement of a redress scheme?
- What mechanisms will be in place to ensure that the scheme will be used as an opportunity for the NHS to admit its mistakes, learn from them and take corrective action?
Citizens Advice agrees with many other advice and patients’ organisations that the proposed NHS Redress Scheme needs to include:
- An independent means of deciding upon the merits of cases, rather than decisions being made by the NHS Trusts or the NHS Litigation Authority themselves;
- the provision of advice and assistance to patients and their families which is sufficiently expert in medico-legal matters and clinical negligence;
- robust measures to ensure that lessons are learnt from medical errors identified through the scheme and that action is taken to improve patient safety.
Clauses 1 to 3 - Establishing the redress scheme
It seems remarkable that there is so little on the face of the Bill about how the scheme will be established. It is not clear from these clauses whether there will be a single scheme, or several schemes for different health authorities. Nor is it clear what sort of public body will be primarily responsible for the administration of the scheme. We consider it to be essential that the bare framework of the scheme should be established by primary legislation.
Clause 4 to 6 – Proceedings under the scheme
The lack of clarity and detail about who may commence proceedings under the scheme, how proceedings under the scheme may be commenced, and time limits in relation to the commencement of proceedings under the scheme, leaves many crucial questions unanswered. The trigger for entering the redress scheme is professional negligence (the ‘Bolam Test’), but it is unclear whether the complainant needs to have exhausted the processes available under the NHS Complaints scheme. If not, will the time limit for the NHS Complaints scheme apply or will instead the time limits be set by statutory limitation periods (three years for civil proceedings)?
Citizens Advice’s preference was for a ‘no fault’ compensation scheme as originally envisaged by the Chief Medical Officer’s report, Making Amends – in other words a scheme providing for alternative dispute resolution. In order to achieve a situation in which the process of dealing with issues with poor clinical and healthcare practices in NHS services can shift from a ‘litigious’ to a ‘redress and rehabilitative’ culture, the complaints process should be less about finding fault with individuals, but rather the NHS taking responsibility for its services and addressing bad practice pro-actively. Applying the ‘Bolam test’ (clinical negligence) retrospectively inevitably leads down a route in which NHS authorities will seek to protect their staff’s reputation.
Citizens Advice agrees with the basic position of the government that a redress scheme should offer an alternative option to rather than replacement of civil proceedings before the courts, and that access to one route of redress should not prejudice the other, however what is proposed is a hybrid system which duplicates the legal process. If redress proceedings are to be founded on clinical negligence grounds then the process needs to be rigorous, based on rules of evidence and legal standards of proof. It is hard to see how this could be achieved by an internal investigatory process with limited expert independent oversight.
Clauses 8 and 9 – Legal advice and assistance
The interface between the complaints procedure and clinical negligence will be affected by changes introduced in legal aid eligibility rules. With respect to public funding, the Legal Services Commission has made clear applicants will be expected to pursue any available complaints system before they are funded to take proceedings. This will give the potential defendant public body the opportunity to respond to the matters raised and provide an explanation or apology if appropriate before it is decided whether litigation is the appropriate remedy for the client.
It has been unclear in discussion and debate whether the provision of advice and assistance to patients and their families under the proposed NHS redress scheme might be made available through ICAS services. As the key providers of ICAS services, we have made it clear that we do not consider it to be the role of a complaints service to offer advice and representation on medico-legal matters and clinical negligence, this requires significant expertise that is beyond the capacity of the ICAS service. While all Law Centres and some Citizens Advice Bureaux employ solicitors, clinical negligence is a complex and specialist area in which such solicitors are unlikely to have much, if any, experience. Under current arrangements, and without the resources to recruit specialist advice units, we do not consider that they would be able to provide the “independent legal advice” referred to in the Bill. In our view, such advice can only properly be given by independent specialists in this area.
Clinical negligence is a highly complicated field of law. Indeed ICAS does not deal with complainants seeking financial redress for such matters. Where this is what complainants are seeking ICAS advisers will explain the option of clinical negligence, for which clients would then need to seek legal advice. Currently, the NHS complaints procedure cannot be used in conjunction with legal action.
The “Statement of Policy” published by the Department of Health in November 2005 suggests that the scheme would essentially be run by scheme members, who would identify eligible cases, investigate them, and propose redress where they consider it appropriate, the scheme being overseen and monitored by the NHS Litigation Authority. However, this would fail to meet the key concerns about independence and raises issues about conflict of interest. It essentially proposes that NHSLA should be advocate, judge and jury. Many questions need answers such as what qualifications will investigators have - will they be medically trained or lawyers or advisors?
The importance of the independence criterion was emphasised by Stephen Walker, Chief Executive of the NHS Litigation Authority, in his evidence to the Constitutional Affairs on the 17th January 2006. Mr Walker made it clear that, where liability or the amount of compensation is in issue, then under a scheme administered by his Authority, there should be a joint referral to an independent expert by the Authority in conjunction with the claimant’s solicitor. This follows the procedure adopted in the ‘Resolve’ Pilot scheme, which was considered by an independent evaluation to have been largely successful.
Clause 10 – Membership of the scheme
Will the scheme apply to Foundation Hospitals, Private Hospitals and/or other private providers? This needs to be made clear.
Clauses 14 to 15 – Complaints under the scheme and the role of the Healthcare Commission.
Without further explanation, it is surely questionable whether different parts of a complaint can be treated differently as suggested by clause 14. These clauses also suggest that the complaints procedure could be the first stage of the process, in which case other parts of the Bill will need significant redrafting. Using the complaints system as the first stage will involve the Healthcare Commission and the way they conduct investigations will have to be modified so they use independent medical reports and apply the Bolam test where appropriate
Social Policy Officer: James Sandbach; james.sandbach@citizensadvice.org.uk
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