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Published online by Cambridge University Press: 02 January 2018
This paper examines the government’s reform of the current system of clinical negligence litigation in England, focusing on an analysis of the redress scheme for low value claims to be established under the NHS Redress Act 2006. The Act establishes a scheme to provide a package of redress to patients in circumstances where they have suffered harm as a result of negligence during the course of medical treatment provided by the NHS. One of the British Government’s central aims in embarking upon reform in this area was to provide a low cost, quick and genuine alternative to the current clinical negligence litigation system. This paper critically analyses this reform of the current system by reference to an examination of what constitutes a just redress scheme in the circumstances. Such analysis shows that the government has missed a golden opportunity to establish a scheme which truly ‘makes amends’ to patients who have suffered harm through medical treatment in the NHS. Instead, the scheme is likely to operate in practice as an administrative scheme for low value claims that serves the institutional and financial interests of the NHS, and therefore fails to address longstanding patient concerns over the provision of redress arising out of harm suffered through medical treatment. As a result, patient confidence in the scheme is likely to be undermined in the long term.
1. Chief Medical Officer Making Amends: A Consultation Paper Setting Out Proposals for Reforming the Approach to Clinical Negligence in the NHS (London: Department of Health, 2003).Google Scholar
2. National Audit Office Handling Clinical Negligence Claims in England Report by the Comptroller and Auditor General, Session 2000–2001, HC 403, 3 May 2001, p 1. The NAO’s figures have been criticised, however, as ‘deeply misleading’ with regard to the actual costs of clinical negligence claims against the NHS in England (see Fenn, P. et al ‘Current cost of medical negligence in the Nhs hospitals: analysis of claims database’ (2000) 320 BMJ 1570).CrossRefGoogle ScholarPubMed
3. Learning from Bristol: The Report of the Public Inquiry into Children’s Heart Surgery at the Bristol Royal Infirmary 1984–1995 Cm 5207, Final Report, Summary, para 86, p 16; Recommendation 37, p 442, available at http://www.bristol-inquiry.org.uk/final_report/report/index.htm.
4. Vincent, C., Young, M. and Phillips, A. Why do people sue doctors? a study of patients and relatives taking legal action’ (1994) 343 The Lancet 1609.CrossRefGoogle ScholarPubMed For the purposes of this paper, an ‘adverse event’ is defined as ‘an event or omission arising during clinical care and causing physical or psychological injury to a patient’; see
5. NHS Redress Act 2006, s 16(6) requires that parliamentary approval be obtained for the regulations establishing the scheme. In relation to the dates for implementation of the scheme, see Department of Health Full Regulatory Impact Assessment, NHS Redress Act 2005 (28 February 2006) p 25, available at http://www.dh.gov.uk/assetRoot/04/12/09/24/04120924.pdf.
6. We recognise that a wide definition of redress would encompass the resolution of complaints made by patients in relation to medical treatment received within the NHS. An examination of the recently revised NHS complaints procedure, however, is outside the scope of this paper. We also acknowledge the existence of framework powers under s 17 of the Act in relation to the operation of the redress scheme in Wales; however, our focus in this paper is on its operation in England only.
7. Lim v Camden & Islington Area Health Authority [1980] AC 174 at 187 per Lord Scarman.
8. We acknowledge the wealth of recent academic literature examining theoretical and empirical research on restorative justice; however, a wider examination of this concept is outside the scope of this paper. In setting out our understanding of what constitutes a just redress scheme for the purposes of this paper, we have drawn in particular on the recent work of John Braithwaite in this field (see Restorative Justice and Responsive Regulation (Oxford: Oxford University Press, 2002); ‘Restorative justice and de-professionalization’ 13 The Good Society 28; and
9. NHS Redress Act 2006, s 1(5). Under s 1(6)–(11), the definition of ‘hospital’ is intended to have the same meaning as given in the National Heath Service Act 1977.
10. NHS Redress Act 2006, s 1(2). The use of the term ‘a body or person’ is intended to refer to the Secretary of State for Health, a primary care trust, a designated strategic health authority, or a body or person providing, or arranging for the provision of, services whose provision is the subject of arrangements with a body or person previously referred to (see s 1(3)).
11. Where current contractual arrangements between such organisations do not provide for inclusion in the scheme, NHS commissioning bodies (such as primary care trusts) will take over responsibilities for managing the redress scheme on their behalf until renegotiation of existing contracts can take place (see Lord Warner, Minister for Health, NHS Redress Bill, House of Lords, Grand Committee, 23 November 2005, col GC412.
12. NHS Redress Act 2006, s 10. See also NHS Redress Bill, House of Lords, Explanatory Notes, 2 March 2006, paras 9–10, available at http://www.publications.parliament.uk/pa/cm200506/cmbills/137/en/06137x--.htm.
13. NHS Redress Act 2006, s 1(4)(b).
14. Ibid, s 1(10). Examples of healthcare professionals covered under the Act include those subject to professional regulation such as doctors, nurses, midwives, physiotherapists; unregulated healthcare professionals such as psychotherapists; and healthcare scientists such as sonographers and perfusionists; see Department of Health NHS Redress: Statement of Policy (14 November 2005) p 5, available at http://www.dh.gov.uk/assetRoot/04/12/32/82/04123282.pdf.
15. NHS Redress Act 2006, s 1(6).
16. Department of Health, above n 14, pp 19–20.
17. NHS Redress Act 2006, s 1(4)(a). This definition is ‘intended to exclude from the scope of a redress scheme liability, for example, arising from slipping or tripping caused by the acts or omissions of non-healthcare professionals such as hospital cleaners or hospital maintenance personnel’; see Explanatory Notes, above n 12, para 12.
18. The test established in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 holds that a doctor will not be held negligent if she or he acts in accordance with a responsible body of medical opinion (at 588 per McNair J). Subsequently, in Bolitho (Deceased) v City and Hackney Health Authority [1998] AC 232, the House of Lords expanded upon the Bolam test, providing that the relevant responsible body of medical opinion must be able to withstand logical analysis (at 243 per Lord Browne-Wilkinson). For the government’s position on the matter, see Lord Warner, Minister for Health, NHS Redress Bill, House of Lords, second reading, 2 November 2005, col 237; Department of Health, above n 14, p 5.
19. In line with this alternative formulation, the CMO went on to recommend that the ‘criteria for receiving payment’ would be where there were ‘serious shortcomings in the standards of care; the harm could have been avoided; and the adverse outcome was not the result of the natural progression of the disease’ (see CMO, above n 1, p 120).
20. Ibid, p 117.
21. AvMA, Briefing on the NHS Redress Bill (31 October 2005) p 5, available at http://www.avma.org.uk/index.asp.
22. A range of services can be provided for under s 8 of the Act, including legal, medical expert, mediation and other forms of non-legal assistance. In this paper, however, we only consider the provision of legal and medical expert advice.
23. Department of Health, above n 14, p 12.
24. AvMA, above n 21, p 1.
25. Mr Andy Burnham, NHS Redress Bill, Report Stage, House of Commons, 13 July 2006, col 1543. Despite reassurances from the government that funding will provided for the provision of legal advice where there is joint instruction of a medical expert, this is not apparent from a reading of the Act; see s 8(2).
26. House of Commons, Constitutional Affairs Committee (HC(CAC)) Compensation Culture Third Report of Session 2005–06, HC 754-1, vol 1, 1 March 2006, para 7.
27. Ibid, para 10.
28. Department of Health, above n 14, p 11.
29. Brahams, D. ‘The Cmo’s report “Making Amends”– a response’ (2003) 71 Medico-Legal Journal 125 Google ScholarPubMed;
30. Letter from Rt Hon Jane Kennedy MP, Minister of State, Department of Health to Rt Hon Alan Beith MP, Chairman of the Constitutional Affairs Committee, HC(CAC) Compensation Culture: NHS Redress Bill HC(CAC), Fifth Report of Session 2005–06, HC 1009, 28 March 2006, Appendix, pp 7–11.
31. It was observed in Grand Committee discussions over the Act (then Bill) in the House of Lords that the result of such an approach may be that the NHS will enjoy a ‘considerable, if unquantifiable saving in the sums of money which it pays to compensate genuine loss or injury’; see Earl Howe, at cols GC358–359. AvMA has also suggested that such an approach may also breach the Human Rights Act 1998; see AvMA, above n 21, p 4.
32. NHS Redress Act 2006, s 3(5)(b). Any offers of redress by the scheme authority will be made on a ‘without prejudice’ basis, as neither offers nor settlements are to be regarded as an admission of liability for the purposes of subsequent litigation; see Department of Health, above n 14, p 4. In the event that an offer of redress is accepted by the patient, she or he will be required to enter into a settlement agreement which will include a ‘waiver of the right to bring civil proceedings in respect of the liability to which the settlement relates’; see NHS Redress Act 2006, s 6(5).
33. NHS Redress Act 2006, s 3(5)(c).
34. HC(CAC), above n 30, p 9.
35. Department of Health, above n 14, p 8.
36. CMO, above n 1, p 120.
37. P Fenn, A Gray and N Rickman ‘The economics of clinical negligence reform in England’ (2004) 114 The Economic Journal 289.
38. See discussions in the House of Lords during the second reading of the Act (then Bill) over the costs associated with implementing the redress scheme at cols 210–211, 217 and 234. The Department of Health has itself acknowledged that there is likely to be an increase in costs, but argues that this will be offset over time by a reduction in legal costs, as well as the fact that use of tort law to determine eligibility for the scheme is likely to weed out successfully any increase in opportunistic claims by patients; see Department of Health, above n 5, pp 14–16.
39. Explanatory Notes, above n 12, para 19.
40. Fenn et al, above n 37, at 287.
41. See above n 7.
42. Explanatory Notes. above n 12, para 17.
43. This is particularly so given criticism by the Healthcare Commission of the way in which the NHS deals with complaints by patients. As at October 2005, the Commission indicated that a third of cases referred to it for review had been returned to the NHS because it was considered they had been inadequately dealt with at local level. In addition, some NHS trusts were failing to comply with their obligations to forward the requisite information to the Commission to enable it to review complaints; see the website available at http://www.healthcarecommission.org.uk/NewsAndEvents/PressReleases/PressReleaseDetail/fs/en?CONTENT_ID=4021198&chk=H5vmRO. Although a more detailed examination of the NHS complaints procedure is outside the scope of this paper, for a more general overview of the history of, as well as the problems that have arisen in, this area, see Mulcahy, L Disputing Doctors: The Socio-Legal Dynamics of Complaints about Medical Care (Buckingham: Open University Press, 2003).Google Scholar
44. NHS Redress Act 2006, s 3(2)(d).
45. Vincent et al, above n 4.
46. NHS Redress Act 2006, s 6(3)(a) and (b).
47. Ibid, ss 6(3)(b), 4(a) and (b).
48. Mr Andy Burnham, Minister of State for Health, NHS Redress Bill, Report Stage, House of Commons, 13 July 2006, cols 1528–1533.
49. Department of Health, above n 14, p 8.
50. The Department of Health has indicated only that offers of redress will ‘not include anything wider than clinical care; for example, offers of redress will not include social care. Healthcare professionals within the NHS will assess the need for remedial clinical care’; see ibid, p 11.
51. Department of Health National Service Framework for Children, Young People and Maternity Services: Disabled Children and Young People and those with Complex Health Needs (2004), available at http://www.dh.gov.uk/assetRoot/04/09/05/56/04090556.pdf.
52. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provides that in an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1947 or of any corresponding facilities in Northern Ireland.
53. HC(CAC), above n 26, para 107.
54. See, eg, the House of Commons Standing Committee, NHS Redress Bill, 13 June 2006, cols 41–90; and the consideration of Commons amendments in the House of Lords, NHS Redress Bill, 25 October 2006, cols 1237–1251.
55. Ms Patricia Hewitt, Secretary of State for Health, NHS Redress Bill, House of Commons, second reading, 5 June 2006, col 30.
56. AvMA, above n 21, p 3.
57. Lady Neuberger, NHS Redress Bill, House of Lords, Second Reading, 2 November 2005, col 213.
58. Lord Turnberg, NHS Redress Bill, House of Lords, Second Reading, 2 November 2005, cols 228–229.
59. Consideration of Commons Amendments, NHS Redress Bill, House of Lords, 6 November 2006, cols 633–638.
60. CMO, above n 1, p 119.
61. Department of Health Reconfiguring the Department of Health’s Arm’s Length Bodies (London: TSO, 2004) pp 21–22 Google Scholar, available at http://www.dh.gov.uk/assetRoot/04/09/81/36/04098136.pdf.
62. Although the Secretary of State has the discretion to determine the functions of the scheme authority, see s 11(2)(a)–(h) of the Act for details of the specific functions that are required to be performed by the scheme authority.
63. NHSLA Framework Document December 2002, s 1.2, available at http://www.nhsla.com/NR/rdonlyres/FEDA726E-88AE-4365-BCA7C96658C913C3/0/Frameworkdocument.doc.
64. The other clinical negligence litigation schemes managed by the NHSLA are the Existing Liabilities Scheme (ELS) which indemnifies members and their employees in respect of clinical negligence incidents that occurred before 1 April 1995. There is also a small scheme in place to cover claims made against ex-regional health authorities (ex-RHAs Scheme). Both schemes are centrally funded by the Department of Health; see the website available at http://www.nhsla.com/Claims/Schemes.
65. Department of Health, above n 14, p 2.
66. Earl Howe, NHS Redress Bill, Grand Committee, House of Lords, 21 November 2005, cols GC327 and 360.
67. AvMA, above n 21, p 5.
68. The Healthcare Commission is the more commonly used term for the Commission for Healthcare Audit and Inspection (CHAI). It was established pursuant to the Health and Social Care (Community Health and Standards) Act 2003. It performs a range of functions, including the review of complaints made by patients in relation to medical treatment received within the NHS where local resolution was not possible, as well as publishing annual ‘health checks’ on how individual NHS trusts are performing in line with a range of performance, quality and treatment standards.
69. This was also the initial position adopted by AvMA, as well as that of the political opposition during the passage of the Act through Parliament. They eventually withdrew their objections in the face of the government’s refusal to move on the issue; see AvMA, above n 21, p 2. See also the discussions in the House of Lords Grand Committee, 21 November 2005, cols GC328–329 and 416–419.
70. CMO, above n 1, p 117.
71. Department of Health, above n 4, p viii.
72. NPSA Charting Progress: Annual Review 2004–5: Part 1 (2005) p 2, available at http://www.npsa.nhs.uk/site/media/documents/1363_AnnualReview_1_5_new.pdf.
73. NHS Redress Act 2006, s 10(2)(h) and (i).
74. Department of Health, above n 14, pp 15–16.
75. NHS Redress Act 2006, s 10(3).
76. Lord Warner, Minister for Health, NHS Redress Bill, House of Lords, Grand Committee, 21 November 2005, col GC372.
77. Earl Howe, NHS Redress Bill, House of Lords, Grand Committee, 23 November 2005, col GC411.
78. This would of course be in addition to patients and their legal representatives initiating claims under the redress scheme. Representatives of deceased patients are entitled to initiate a claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, while financially dependent members of the family of deceased patients can claim pursuant to the Fatal Accidents Act 1976. On the virtues of the ‘triggering process’ for scheme members, see Department of Health, above n 5, p 12.
79. See recent media reports on the ongoing financial crisis being experienced by many NHS hospitals: J Laurance ‘NHS chiefs admit patient care is suffering because of cost-cutting’ The Independent 19 January 2006; N Timmins ‘NHS needs to take £1 bn out of costs after overspend’ The Financial Times 7 June 2006; D Brindle ‘Poor areas hardest hit by NHS cuts in London’ The Guardian 7 August 2006; J Carvel ‘Revealed: the 13 bankrupt NHS trusts’ The Guardian 11 December 2006.
80. CMO, above n 1, pp 117 and 125–126.
81. HC(CAC), above n 26, para 92.
