LEGAL FACTSHEETS
THE
NHS REDRESS BILL – CUTTING THE COST OF CLINICAL NEGLIGENCE
CLAIMS
In 2003 the Government
Chief Medical Officer investigated the handling of NHS medical
errors in his report “Making Amends”. The NHS Redress
Bill is the government’s response to his suggested NHS
redress scheme. Unfortunately they have left out most of his
good ideas. This scheme has one purpose – cost cutting.
The bill is currently
passing though parliament. There is still time to change it.
Proposed
NHS Redress Scheme
The scheme applies
to hospital care only, not to GPs It will be operated by NHS
trusts supervised by the National Health Service Litigation
Authority. The trust will investigate each claim, decide if
there is a case, and offer compensation.
The scheme is voluntary
so a claimant can refuse an offer and go on to make a legal
claim in the usual way. Time limits for bringing legal claims
will be suspended while the claimant goes through the scheme.
What
is wrong with the Scheme?
The NHS will be investigator,
prosecutor, defendant and judge. This is rather like asking
the driver who knocked you down to decide if he is to blame.
The claimant won’t
have any legal help unless an offer is made and then only to
say whether it is enough. This work will be very limited and,
even more worryingly, the claimant may have to use an NHSLA
approved lawyer. So, imagine the driver gets his lawyer to tell
you whether he’s offered you enough.
The legal rules about
establishing responsibility and assessing compensation which
will apply to the scheme are complex. To add insult to injury,
the NHSLA will be able to cap awards for certain items irrespective
of what the claimant has actually lost.
Anyone who has made
an NHS complaint or tried to bring a legal claim will know this
is a recipe for routine injustice to claimants.
While it seems the
government intends to use the scheme for smaller claims, the
limits being talked about are well over a year’s salary
for many and represent injuries which are not trivial.
How
will the scheme affect clinical negligence claims?
If the scheme is
unattractive, only those with no choice will use it. At worst
it will be a wasted opportunity. However, crucially, we don’t
know how legal aid will be affected – it could even be
unavailable for claims within the redress limit thus forcing
claimants to use the scheme. Similar problems could apply to
getting private costs back from the NHSLA. Inevitably the limits
will increase bringing more claims into the scheme.
What
can be done?
If the scheme is
to build trust in the NHS and encourage early consensual resolution
of claims rather than entrench distrust and fob off claimants,
it must include:
1 An independent
decision maker
2 Adequate independent advice for the claimant
3 A duty on NHS managers and clinicians to be honest with patients
when something has gone wrong – encouraging early and
full admissions is the best way to save costs.
4 Full fair compensation
5 Any limited scheme must apply only to truly minimal injuries
Further
Information
See the AvMA website
www.avma.org.uk for a very helpful briefing and information
about campaigning to improve the bill. You can get the text
of the bill and explanatory notes as well as information about
its progress from www.parliament.uk/bills/bills.cfm. Click on
the link to the full list of public bills before parliament
and you will find the NHS Redress Bill in alphabetical order.
Shurouk Al-Sabbagh is a partner in the Clinical
Negligence Department of Leigh Day & Co Solicitors. She
is a member of the Law Society and AvMA Clinical Negligence
Specialist Panels.
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