Clinical Negligence (Hansard, 30 June 2003)

§ Lord Warner

We are pleased to announce the publication today of a report for consultation by the Government's Chief Medical Officer, Professor Sir Liam Donaldson, outlining proposals for reform of the National Health Service clinical negligence system.

The report, entitled Making Amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS, has been prepared against a background of the rising cost of claims for clinical negligence, which have drawn much media attention. In line with our wider drive to put patients at the heart of the NHS and patient safety at the top of its agenda, Sir Liam proposes that a less adversarial system should be available. Injured patients would no longer have to resort to lengthy and costly court action under the tort law. It would allow the NHS to be pro-active in responding to sub-standard care. There would be clear links to NHS quality initiatives to improve the patient's experience of the NHS as well as an incentive to drive up standards and so reduce injuries in the first place.

The Chief Medical Officer proposes a NHS redress scheme which would offer redress for injuries, in all senses of that word. The scheme would provide people who were injured with an explanation of what went wrong, the necessary apologies, treatment for that injury and support for patients and their families, as well as some financial compensation in appropriate cases. It is proposed that families of neurologically impaired babies would also be eligible for the NHS redress scheme if the impairment was birth related and fulfilled other eligibility criteria.

Although a person's right to pursue a formal claim in the court would remain, patients would no longer have to resort to the law as the only way of resolving a dispute with the NHS. Proposed improvements to the legal aid system would mean that use of the NHS scheme would be taken into account if a claimant applied for legal aid after rejecting a fair package of redress under the NHS scheme. At present, over 70 per 72WA cent of clinical negligence cases are legally aided, meaning the taxpayer often foots the bill through the legal aid budget if the NHS wins a case or the NHS budget if it loses.

For too long, we have had a disjointed approach to clinical negligence in the NHS. There are often no clear links between complaints procedures and the systems to deal with clinical negligence claims at a local level. There is little consideration of the wider issues raised by complaints and clinical negligence claims—and settlements—locally and nationally. Finally, there are no reliable systems of ensuring that mistakes made in one organisation are not repeated in another.

The proposed NHS redress scheme would link to the NHS complaints procedure and the new independent inspection structures being taken forward through the Health and Social Care Reform Bill presently before the House.

The report emphasises the importance of building an NHS that is better at addressing injuries resulting from poor quality treatment. As well as the NHS redress scheme, it recommends that the NHS should improve rehabilitation services and that in cases of clinical negligence the costs of future care should be considered on an NHS-provided rather than a privately-provided basis. This is a long-term measure and it will take time to establish the necessary specialist NHS capacity. However, the Department of Health will be exploring taking this forward through the long-term care national service framework, as it makes sense that those injured by the NHS should be able to get the care that they need from the NHS.

Sir Liam's review has been wide ranging and he proposes radical reform of the present lengthy, complicated and over adversarial court-based system. The existing system is slow and often does not provide injured patients with the response to their injuries that they seek. The new system will be more responsive to the needs of patients for redress, and of the NHS for mechanisms that help it learn from mistakes. We believe it is possible to have a system that responds to patients' needs, that supports clinicians to deliver the very best quality care, and that is a driver for the NHS to learn from mistakes to continue to improve the quality of care it delivers.

There will now be a consultation period until 17 October. Following considerations of the issues raised and of the views of respondents on the specific questions asked, the department expects to set out the next steps to reform the clinical negligence system in the autumn.

A copy of the report has been placed in the Library.