The CMO´s Report - Action Points

The Chief Medical Officer’s Report on reforming clinical negligence litigation is a far reaching and thoughtful paper. It contains a great deal of useful information, but it is not a White Paper and various aspects of it are unlikely to be implemented in the present financial climate.

For example, the ‘Redress’ Scheme for clinical negligence claims is closely modelled on the NHSLA’s ‘Resolve’ Pilot Scheme. The limit is higher but otherwise the ideas in it are fairly similar. Under ‘Resolve’ Claimants are able to make an application, the merits of which are assessed in private by someone appointed by the NHSLA and compensation may or may not be forthcoming. Claimants do not lose their right to sue.

The merit of ‘Resolve’ is that it provides a way of distributing money to people who have been damaged by the Health Service at a fairly low cost. The demerit of it is equally simple: it is all new trade. None of the Claimants in ‘Resolve’ would have brought a claim through conventional litigation. If the state wishes to divert NHS money towards compensating these sorts of people as a deliberate of policy, ‘Redress’ provides a good model.

There are two disadvantages. The first is that according to research in this country, which is consistent with findings in America and Australia, there are about 850,000 significant adverse events every year. It may be that only half of them are avoidable and that a significant proportion do not cause long-term damage. Nevertheless this suggests that there are still about 250,000 – 300,000 people who could make a claim through ‘Redress’.

If each of them were to receive half the upper limit proposed by Sir Liam Donaldson, expenditure on these cases would be over £3 billion per year.

Furthermore, it is part of the policy adumbrated by Sir Liam that the NHS has a duty to unearth these cases through its risk management procedures and to be candid with the Claimants. In other words, there would only be any savings out of the total liability for the scheme insofar as it failed to achieve its objective.

Another problem with the scheme is that a tiny proportion of Claimants agree with the NHSLA’s initial assessment of the value of their claims. Damages for the injury itself are largely codified by past decisions, but the greater part of the awards are in respect of loss of earnings or the cost of putting things right. These claims can only be assembled by skilled lawyers who examine the precise circumstances of the Claimant. The result is likely to be a considerable expansion in legal cases albeit confined only to quantum, since liability will have been conceded at the outset. Even if half the Claimants accept the LA’s offer in ‘Redress’, there will be something like a 20-fold increase in litigated claims.

As far as the scheme for cerebral palsy is concerned, there are two significant disadvantages. The first is that the scheme would abandon fault as a basis for allocating resources without moving to need. The CMO is mistaken in describing the present system as a lottery. It may be inaccurate, but it does as well as human wisdom can, allocate resources on a just basis. To give some money to all children who suffer an injury at birth, but not those who suffer a similar injury a week or two before is to embrace the mechanics of a lottery. There are only two fair bases for allocating resources in this field: fault or need and this falls between the two stools.

The proposed scheme would hope to attract Claimants by offering a superior version of NHS care and about half of the damages that the Court would on other bases. Such an award would be unlikely to attract anyone with a well-founded claim against the Service and the Judge would refuse to approve the settlement as being in the baby’s interests if they did. Thus one must expect that this scheme as well would attract new claims without significantly reducing the volume of conventional claims.

During the consultation period people will be likely to look closely at what is actually happening to the existing system. The volume of claims to the NHSLA has now fallen in two successive years. Sir Liam Donaldson reports that the average claim is now taking 14 months to settle, a radical improvement on the state of affairs apparently unveiled by the National Audit Office Report two years ago. The number of claims to the GMC fell by 13% last year. The scare stories provoked by a confusion between the NHSLA’s reserving policy on the basis of government accounting standards and the cost of claims per year have now been exposed.

If those developments continue, society is likely to conclude, like most of the professionals involved, that the system isn’t broke and doesn’t need fixing, at least by such radical measures. Whilst there is a justice in the idea of a remedy for every wrong that is suggested by ‘Redress’, there are other calls on NHS resources which are a much higher priority, such as funding the Service. There are several proposals in the Report which could be acted on by individual Trusts now and which should be considered carefully.

1. There should be a Board member on every Trust who has direct responsibility for managing claims at local level and learning the lessons from the event.

This is already happening in the vast majority of Trusts and those where it was not set up in the wake of the Organisation with a Memory now look increasingly isolated. This is an important point and laggards should fall into line.

2. The Service should acknowledge a duty of candour to victims of adverse events.

This is an idea for which the legal profession can claim some credit. It was first advanced by Lord Donaldson more than 20 years ago. It was embraced by the MDU 16 years ago and by the NHSLA in 1997. The GMC caught up in 1998 and it has now been overtly endorsed by the Department of Health. If the lawyers and those who manage litigation spotted it first, everyone else has fallen into line.

It does not matter how this would sound in damages, it must be clearly understood that the Health Service recognises an obligation to level with the victims of its misfortunes and to explain what has happened and why insofar as it can. Trusts should act on this by making sure that their staff are aware of the changing culture.

3. Staff should be told that they will not be disciplined if they own up to their shortcomings unless it involves activity which is criminal or implies that they will be unsafe in the management of patients in the future

Here the CMO has trodden in uncertain territory. There has been a genuine disagreement in the Service for over 30 years about this issue. Some feel that unless this carrot is offered medical staff will not own up to their misfortunes, and it is much more important to get the data in to prevent a recurrence than it is to discipline the miscreant. Others feel that it sends a hopelessly confused signal and that staff should be told that they must disclose shortcomings and that they will be disciplined if they do not. Generally speaking the tide of opinion is flowing in the latter direction. We do not advise employers to give any such inducements to their staff at the moment because they may subsequently wish to embrace a tougher policy and will be criticised for having given confused signals by staff who claim to have relied upon them.

One proposal that Sir Liam Donaldson has made which we hope will be heartily endorsed by everybody connected with the Service is the repeal of the provision whereby the availability of the NHS to meet the needs created by an injury should be ignored when considering the reasonability of a claim for private treatment. This leads to the NHS having to pay money to enable private treatment to be purchased, without creating any obligation on the recipient not to use the NHS to meet the need. Thus we sometimes find the Service being forced to pay for private medical treatment by way of compensation and then providing that treatment itself. We think there never has been any justification for departing from the simple common law rule that the Claimant’s entitlement to this sort of money should be judged on a simple balance of probabilities and that the courts should apply the usual rules about a duty to mitigate a loss which are thought good enough in every other area.

Overall we must recognise that Making Amends is a box full of ideas and the Service should ensure that the more modest ones are not wasted, simply because the big ideas are beyond the means of the Service for the time being.