Meetings & Events:
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October 24, 2005 - Patient Safety: Litigation in the NHS
Overview
In 2004-05, 5,609 claims of clinical negligence and 3,766 claims of non-clinical
negligence were received against NHS bodies. During this period, £502.9
million was paid out in connection with clinical negligence claims compared
with £422.5 million in 2003-04. The NHS Litigation Authority estimates
that the NHS currently has total liabilities amounting to £7 billion.
As the public becomes more inclined to seek redress against the NHS, the number
and value of claims are rising fast.
This meeting discussed this issue of Litigation in the NHS, the NHS Redress
Bill and how patients could be brought to the heart of a new litigation system.
The panel considered the benefits of a streamlined litigation process and how
increased consideration of patient safety can help to minimise harm to patients
whilst at the same time reducing costs to the NHS. The panel also discussed
the importance of prioritising preventative action in the wider debate around
medical accidents.
Speakers were:
Dr Howard Stoate MP, Chair of the Group, opened the meeting saying
that few in the NHS wanted litigation, but rather swift redress for any mistake
or accident. Dr Stoate pointed out that Doctors often go through years of career
damage even if innocent. He said he hoped the introduction of the Clinical Redress
Bill would mean that adverse incidents were dealt with in a swifter, fairer
and more accountable way across the NHS.
Peter Walsh, Chief Executive of Action Against Medical Accidents, explained
that it is a myth that we are living in a litigious society. He argued that
in fact we live in an ‘anti-litigation culture’ and referred to
the National Patient Safety Agency's (NPSA) annual report which, he pointed
out, ‘unequivocally’ stated that there was not a litigation culture
in the NHS. He pointed out that, in relative terms, claims against the NHS had
actually diminished during its 43 year history. Over a million patient safety
incidents in the NHS during the past year had only resulted in 5,500 claims.
Patients, said Peter Walsh, demand three things. Top of the list was the truth,
encompassing reasons and an explanation for the incident. The second was an
apology, and the third, reassurance that lessons had been learnt from their
experience. He said that bottom of most patients list was a desire for compensation,
except where it was needed for the patient to lead the standard of life they
had previously been accustomed to. Mr Walsh said that he was therefore disappointed
with the NHS Redress Bill because the NHS remained the investigator, judge and
jury in patient safety incidents. He argued that the Bolam test was only intended
for a court based system and that the NHS should instead have an ‘avoidability
test’ which asked what went wrong and what should be put right as well
as whether compensation should be granted or not. Mr. Walsh concluded by stating
that litigation should be used as a safety net only, as not enough action was
currently taken to prevent a re-occurrence.
The next speaker, Steve Walker, Chief Executive of the NHS Litigation Authority,
started by pointing out that the Clinical Redress Bill was only an enabling
bill, which marked a change in the philosophy in relation to adverse events
in the NHS. He stated that the NHS interfaces with a million patients a day
and argued that the relatively small number of claims against the NHS suggested
that there was not a compensation culture, but rather, a culture of candor amongst
clinicians. But he said that human nature meant that openness would take time,
with trust growing between trusts and clinicians. He said that people should
know rights and how to exercise them.
He emphasised that the Clinical Redress schemes would be voluntary and that
no one would be forced to seek compensation through redress. He said that redress
would guarantee an apology and explanation for the patient.
In terms of risk management, Mr. Walker stressed that to implement a ‘no
fault’ system in the NHS was too expensive and that there would be no
political mandate. He pointed out that most of the Clinical Redress Bill was
in statutory instruments and that there would be a cap on the threshold of probably
around £20,000.
Mr Walker pointed out that under the new legislation, if an NHS employee agrees
that they made a mistake, there would be no need for independent analysis. To
this extent he disagreed with Peter Walsh’s assertion that it was important
to have an independent body investigating incidents. He conceded, however, that
patient safety elements should be built into redress.
Dr. Gerard Panting pointed out that media references to NHS blunders outnumbered
references to NHS miracles by three-to-one. He suggested this reflected the
‘screwed’ impression of what is going on in the health services.
Dr. Panting emphasised that doctors are devastated when things go wrong. He
said that the 2000 deaths caused by adverse incidents in England and Wales every
year had a profound and lasting effect on Doctors. Of respondents, 11% said
that the incident had had long lasting effects on their professional lives.
Asked who they turned to for support when things went wrong, 65% of respondents
sited friends and family, while only 24% sited their employing trust.
In response to Mr. Walker, Dr. Panting explained that before being candid, clinicians
had to understand what had gone wrong. He said that he hoped that the Redress
Bill would bring about a culture of candor. He pointed out that when things
do go wrong it is important to be able to ask another expert and that therefore
independent analysis would be difficult. However, he supported a period of review.
Dr. Panting also suggested that accidents were as frequent 10 or 20 years ago
as they are today. He said that they could generally be broken down into three
causes: communication errors such as consent issues, a lack of expertise, or
system failures. Dr. Panting said he was not a subscriber to the view that systems
error is the majority cause of accidents.