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Medical Liability

12.30 pm

Dr. Ian Gibson (Norwich, North): Thank you, Mr. Beard. I congratulate you on your elevation to the Chairman's Panel. It is nice to meet again in a different environment.

I look forward to the debate. It seems from opening a newspaper or listening to the radio as though everything that can go wrong with this country's health care system is going wrong. We have filthy and germ-infested hospitals, our surgeons are incompetent and our nurses uncaring. Things are so desperate that the Leader of the Opposition has to raise an individual case with the Prime Minister before taking the time to check out the facts or speak to the hospital involved. However, in my experience, most national health service treatments work well, most doctors are good at what they do and most patients leave NHS care not only unharmed, but substantially better than when they entered it.

The recent Wanless report, which focused mainly on NHS funding, contained an interesting finding. People who are asked whether they are satisfied with the NHS are more likely to say that they are satisfied if they have recently been in hospital. That is an important piece of information. We are more likely to see the positive aspects of our health care system if we have direct—not indirect—experience of it. However, there is no point in denying that things do occasionally go wrong in the NHS. Some people are distressed and alarmed by the level of care that they or their relatives receive, and, indeed, sometimes things go badly wrong. We may all remember the case of 18-year-old Wayne Jowett, who had the wrong drug injected into his spine and died some weeks later. We certainly remember the terrible and unforgivable details of the scandals surrounding Bristol Royal infirmary and Alder Hey children's hospital, and Harold Shipman's incomprehensible violence. The Guardian's headline today is "Drug mistake led to baby's heart failure". On one or two occasions, events in hospitals and the health service go sadly wrong.

Those cases are examples of things going wrong, but they are all very different. Various mistakes are made in the health service. There is simple human error, which will always occur, no matter how regrettable its outcomes might be. There is incompetence and negligent failure to pick up on doctors who are out of their depth or who consistently let down their patients. There are criminal evil-doers who wilfully and recklessly damage people in their care. Individual failures and the inability of the system to pick up on those failures play a role in all those categories.

It is difficult to estimate how many adverse events occur in the NHS. A study conducted in two London hospitals found that about 10 per cent. of patients admitted to acute hospitals experienced an adverse event, about half of which were preventable with current standards of care. That is also the picture that I gained following an analysis of the local Norfolk and Norwich hospital.

The debate about problems of medical error must be held on two premises. First, errors will occur. No matter how hard we try, we occasionally get things wrong. One of my friends who is a consultant recently told me that hospital practice should operate under the presumption

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of Murphy's law, which states that whatever can go wrong, will. There are some lessons in that for the organisation of hospitals and for patient care in general. Processes must be analysed to establish what can go wrong, and strategies of prevention need to be considered.

Secondly, if things have gone wrong, that is hugely distressing for all the parties involved. It should be recognised that no system of dealing with medical errors after they have occurred, whether it be straightforward litigation, mediation, no-fault compensation or a complaints procedure, can do away with that basic fact. There will be conflict, dissatisfaction and irritation no matter which system of compensation and redress is devised. The people who advertise so-called alternative ways of conflict resolution sometimes forget that basic fact.

We must try to do several things. We need to prevent mistakes—and resulting harm—wherever possible, and to help those who have suffered through a medical error quickly, proactively and cost-effectively; and we must do those things in ways that do not demoralise and undermine health professionals at their place of work.

Someone who has taken part in complaints procedures and independent reviews has told me that he has witnessed consultants angrily storming out of meetings about a complaint against them, and immediately joining their team in the operating theatre to conduct major surgery. That cannot be in anyone's interests.

We must guard against surgeons becoming unwilling to operate on high-risk patients; and that is happening. If doctors focus on their position in a league table rather than on what is best for their patients, something is profoundly wrong.

That checklist serves to highlight that the NHS, and the politicians responsible for the NHS, can do better in many areas. For a long time, no quality assurance systems were in place, and patient safety was dealt with in uncoordinated and haphazard ways. The Government have started to implement a proper patient safety agenda to address those problems. The Health Act 1999 set up the Commission for Health Improvement, which carries out clinical governance reviews. There are now national service frameworks for many conditions and treatments. In 2001, a new National Patient Safety Agency was established to collate and monitor a central register of all adverse events within the NHS. The NHS Reform and Health Care Professions Bill has introduced a new body, the Council for the Regulation of Health Care Professionals, and it has also abolished the community health councils—which some of us have had debates and disputes about—and replaced them with the patient advocacy and liaison services, which we are examining, to see how effective they will be.

Those are great measures. They address prevention, and the design of health care to ensure that it is safe and satisfying for patients, and they ought to be welcomed. However, those measures were introduced recently, and more needs to be done.

By way of offering an example of what further measures should be taken, let us consider the case of injecting a drug that must only be used intravenously into the spine, as happened to a young man named

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Wayne Jowett with fatal consequences. Two cancer drugs, vincristine and methotrexate, got mixed up. No proper system of reporting and collecting such incidents has been in place in past years. Over the past 10 years, 10 people have died in these circumstances. If one thinks of the amount of injections that are given in hospitals every day, or the amount of times that those particular cancer drugs are injected, that figure is not very high. However, each case represents a huge tragedy, particularly as this mistake—a simple human error—is so easy to prevent.

It would be technologically easy to design the respective syringes and needles in such a way that only intra-spinal drug syringes could be used with intra-spinal needles. It is incomprehensible to me—and to people who work in hospitals—why that has not happened: it seems to be one of those cases where the drug companies point at the needle manufacturers, and vice versa, but why on earth do the Medicines Control Agency or the Medical Devices Agency not intervene? What are they for, if not to make medicines and medical equipment safer?

It is a good idea to standardise best practice, but no health practitioner can know and memorise 300 or so written procedures for every conceivable treatment. That, more than anything else, highlights that the NHS is in dire need of investment in proper information dissemination and storage systems. Too many accidents happen because a practitioner does not have, or cannot find, information that is theoretically available.

No one present cannot have seen, and been shocked by, piles of patient notes—unconnected heaps of paper floating around in cardboard files. Essential, life-saving information is hidden away among stacks of irrelevant—and sometimes decades old—correspondence. Vital information about a patient can be hidden in a welter of waste paper. It is astonishing that a safety-critical process such as health care depends on a documentation system that has changed little in two centuries.

A huge investment in information technology for the NHS is needed. A functioning electronic patient record is essential to the reduction of clinical misjudgement caused by lack of information. One of the longest running electronic patient record systems is in the oncology department at my local hospital, the Norfolk and Norwich hospital. It has served the clinicians there for at least eight years, and it has been demonstrated twice to the Department of Health, but it has not received a flicker of interest. We cannot afford to ignore the under-investment in information dissemination systems in the NHS any longer.

In fact, the solution does not lie with small-scale EPR systems, but with the development of a national medical records system that is maintained on a secure backbone using common and non-proprietary datasets and applications through the wired-up NHS. The NHS information technology strategy that exists must be implemented urgently. I remember the disaster following the introduction of IT systems into the Home Office's passport section, and the thought of a similar occurrence in the NHS sends shivers down my spine. It must be possible to muster the expertise and commitment that is required to get the NHS wired up.

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There is a strong economic incentive for bringing the NHS up to speed and into the age of information technology, although I hope that that is not the only argument to which the Department of Health will listen. The Wanless report argues for that.

Medical errors are extremely expensive. Department of Health figures show that the NHS spends £400 million a year on settling claims for negligence. The money that is spent on negligence cases alone would be sufficient to fund the work of a large health service trust for an entire year.

We must rethink what we need to do if things go wrong. I welcome the Department of Health's decision to establish a clinical negligence working party to draft a White Paper on medical negligence and liability.

I shall mention a few more core facts. Last year's Audit Commission report shows that the cost of litigation to the NHS in the vast majority of cases exceeded the value of the settlements that were reached. For every £10,000 that was spent on an average case, the subsequent compensation settlement was £5,000.

In 1999, the Select Committee on Health found that 70 per cent. of claimants came out of litigation feeling dissatisfied and, especially, that many of their questions remained unanswered. Under the current system, it is hard to obtain remedies other than financial compensations, such as prevention of recurrence, apologies and the opportunity to discuss issues with the other side.

Legal aid is available to only 48 per cent. of the adult population in medical negligence cases. One must be either very poor or quite wealthy in order to access the civil justice system. Additionally, medical negligence cases take longer than any other cases before the High Court.

The threat of litigation has profound effects on staff morale and the culture of clinical institutions. Professor Ian Kennedy's report on the Bristol Royal infirmary children's surgery scandal points out that we need a culture of change. A culture of openness and co-operation will not be achieved in the shadow of an adversarial and defensive legal system.

I will be interested to hear from my hon. Friend the Minister about the Department's ideas for tackling those problems. Is the Department contemplating a no-fault compensation scheme, which was recommended by Professor Kennedy? Will the Minister listen to the worries of patient groups that no-fault compensation does not do away with the problems of identifying whether an error has occurred and of public and personal accountability?

The often-quoted New Zealand example shows that no-fault compensation cannot be given to anybody who is unhappy with the outcome of health treatments. People who receive treatment are ill, and it is necessary to distinguish between an operation that could not help a patient and an operation that was botched. If we give up that distinction, medical compensation may become unsustainable. The New Zealand model is continuously adapted to consider such problems.

Is the Minister considering the use of mediation as an alternative form of conflict resolution? How would mediation relate to litigation? Could people access the courts after they had tried mediation?

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Some people argue that an extended and more flexible complaints procedure could offer the solution to the problems that I mentioned earlier. However, if compensation was made available within complaints procedures, which the National Audit Office suggested in 2001, they might become as defensive and adversarial as court procedures are at present.

I realise that we are examining a complicated problem for health service providers, patients and politicians. I doubt that there are many easy answers. I hope that the Minister will enlighten us about the lines of thinking that the Department of Health pursues. The problem is major to the NHS, and if we do not solve it, we may increase the cynicism that people have towards our health system.

12.44 pm

The Parliamentary Under-Secretary of State for Health (Yvette Cooper) : I congratulate my hon. Friend the Member for Norwich, North (Dr. Gibson) on securing this important debate on medical liability and clinical negligence. It is an important subject and my hon. Friend has made some significant and thoughtful points.

The national health service treats thousands of patients every day. It treated more than 12 million patients in England in 1999-2000 alone. Additionally, 43 million patients attended out-patient clinics and more than 14 million visited accident and emergency departments. My hon. Friend is right that with so many patients being treated, clinical errors are sometimes inevitable. When things go wrong, it is important that patients can take the appropriate action and that there is a simple, clear and transparent system for dealing with their concerns quickly, effectively and with the minimum trauma. My hon. Friend is right that there are two aspects to this. It is about learning from mistakes to prevent their repetition and about ensuring that patients get proper redress, explanation, and response.

Under the current system, compensation for harm or injuries suffered as a result of clinical negligence is, in general, paid only where legal liability can be established. Compensation is payable where it can be shown that there has been negligence either by act or omission, there has been harm, and the harm was caused by the negligence. Each claim for compensation will need to be considered on its own merits. Where an agreement between the parties involved cannot be reached, the issues can be resolved only through the civil justice system.

The Government believe that NHS patients who have been harmed or injured as a result of clinical negligence should be able to obtain correct and full compensation. That applies equally to NHS patients treated in the independent sector or overseas and those treated in NHS hospitals. The need to reform the handling of clinical negligence cases was illustrated by the criticisms of the present system in the National Audit Office report published in May 2001, to which my hon. Friend referred, "Handling Clinical Negligence Claims in England".

The report highlighted the increasing number and cost of claims, including legal costs, the length of time it takes to settle claims and the problems caused by the existing separation of the complaints and compensation

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systems in providing the remedies that claimants say they want. In particular, it pointed out that legal and other costs of settlement can often be greater than the settlement itself for some smaller-value claims. The summarised accounts for health authorities, NHS trusts and the NHS litigation authority show that expenditure by the NHS on clinical negligence for the financial year 1999-2000 was £373 million.

The costs of clinical negligence are rising for a number of reasons. Examples include recent House of Lords and Court of Appeal judgments, which have had implications for compensation levels in general. Several factors need to be taken into account. The numbers and costs of clinical negligence claims are significant concerns to the public, the Government and the NHS. We said in the NHS plan that we intend to make further changes to the system for dealing with clinical negligence to try to address those concerns. My hon. Friend asked a series of questions about the Government's present thinking. I will try to set out for him some of the issues that are being considered at this stage, but he will understand that conclusions have not yet been reached.

The chief medical officer, Professor Sir Liam Donaldson, is chairing an advisory committee, drawn from patient groups and the medical and legal professions, to consider possible options for change. The public have also had an opportunity to make their views known. We are taking an open-minded approach to a wide range of potential measures and are not ruling anything out at this stage. However, in considering what reforms may be necessary, the chief medical officer's advisory group is exploring a number of specific areas for reform, including no-fault compensation.

No-fault compensation would remove the need for a claimant to show negligence. Previously the Government have not been convinced of the need to introduce such a system on the grounds that it might not make the process of resolving claims any less adversarial, because disagreement over compensation would remain, and it might not address patients' concerns about receiving an adequate explanation of the events that led to the injury. Such a system would not necessarily reduce the increasing number of claims or the costs to the NHS.

Different factors must be taken into account. We want to develop a no-blame culture in the NHS and need to take account of the issues raised in the report on Bristol Royal Infirmary, which my hon. Friend mentioned, and measures that are being implemented following the chief medical officer's report "An organisation with a memory". We must consider all those factors in reconsidering no-fault compensation.

Another area for evaluation is the interface between complaints and claims. Currently, these are seen as separate processes, but the CMO and his advisory group are considering whether a more intelligent, responsive and patient-focused approach to complaint and claims handling is needed. That might be to provide joint remedies that are more closely tailored to individual claims and complaints, including financial, non-financial and practical measures that would quickly address concerns. As many people have commented, a poorly handled complaint can result in a claim that could have been resolved at a much earlier stage in the process.

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We are considering the role of mediation and other alternatives to dispute resolution through the courts. My hon. Friend talked about the issues surrounding mediation. As hon. Members may know, the NHS Litigation Authority, which manages most claims for the NHS, is working with the Legal Services Commission to develop a joint strategy to promote greater use of mediation. Since May 2000, the NHSLA has required solicitors representing NHS bodies in claims to offer mediation in appropriate cases. The findings of that initiative are being considered as part of the chief medical officer's work to find out whether more can be done to encourage mediation as an alternative approach.

The final main area in which reform is being considered covers the way in which compensation awards are paid. We are considering carefully the relative advantages and disadvantages of using structured settlements or periodic payments instead of lump sum awards. Periodic payments allow for part of an award to be paid in tax-free instalments for the duration of the claimant's life. As periodic payments can be reviewed, such a system could help to ensure that any changes in patients' circumstances or needs are accommodated and that assistance is better tailored to their requirements.

Those broad areas are being considered. Clearly, a number of complicated issues are involved, but the intention is to announce the outcome of the CMO's review later this year. Other issues which my hon. Friend mentioned are also at stake. There are ways to reduce clinical negligence costs in the meantime. It is important to prevent clinical errors from occurring in the first place. The NHS must respond in a way that prevents such errors and respond to errors appropriately so that we can learn from them.

There are other ways of changing the clinical negligence system. We must ensure that money spent on claims goes to the patients who deserve it and not on spiralling legal costs. The NAO has acknowledged the steps that have been taken by the NHSLA and the Legal Services Commission to improve the speed and quality of claims management by rationalising access to better legal advice for claimants and defendants. We must build on that work to ensure that claimants get timely access to the compensation that they deserve. At the same time, we have to address the increase in costs for the NHS.

Perhaps most important, we need to continue the work that is under way on reducing clinical errors in the first place. A series of new mechanisms are in place to ensure that we prevent errors and create the right learning culture—rather than a blame culture—across the NHS, as set out in the CMO's report "An organisation with a memory". One development from that is the new independent body, the National Patient Safety Agency, which was established in April last year. It operates a new national reporting system to record adverse events, the problems to which my hon. Friend referred, and also near misses, which should certainly be included even though adverse consequences may not have happened. We must ensure that lessons learned in one part of the NHS are properly shared with the entire service.

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The new National Clinical Assessment Authority will also provide a fast response to concerns about doctors' performance and a central point of contact for the NHS where such concerns have arisen.

Dr. Gibson : Before my hon. Friend proceeds with discussion of the new structures—and they are welcome—will she spend a minute on medical technologies? Sometimes the wrong tubes are fitted, the wrong anaesthetics administered and the wrong syringes made available to patients, but it is possible to outdo any potential mistakes technologically. Labelling is another serious problem requiring thorough examination. Is that being done?

Yvette Cooper : My hon. Friend is right that technological solutions can prevent repeated errors. We must ensure that when new technologies become available they are in place to respond to adverse events and near misses. It is sometimes obvious that technology should be introduced in response to problems. It ties in with the need to respond to events taking place throughout the country. A national reporting system to pick up and respond to such events is part of the overall picture. Otherwise, a particular problem could arise in one area and the lessons to be learnt from it not reach other parts of the NHS. A local response may not be noticed across the NHS.

Part of the problem is picking up problems, but my hon. Friend is also right that the technological solutions should be in place. He mentioned particular examples, so I will write to him with the details of the responses in those sectors. New technology is part of ongoing work and it is important that the right systems are in place to learn from mistakes and prevent their repetition.

My hon. Friend also mentioned clinical governance, which is crucial at the local level for raising early concerns. Clinical governance provides NHS organisations and health care professionals with a framework for quality improvement that will, over time, develop into a single coherent local programme for assuring and improving the quality of clinical services.

My hon. Friend also rightly mentioned the Commission for Health Improvement, one of whose functions is to help the NHS identify and tackle serious or persistent clinical problems. Information about clinical negligence claims is considered by the Commission in the context of its clinical governance reviews of individual NHS organisations.

Considerable work is being undertaken across the NHS with the aim of learning from problems and preventing their repetition, and resolving the difficult issues surrounding medical liability and clinical negligence. No simple answers can be found, but it is widely felt that improvements can and must take place. We need to reflect on the issues and debate them fully, but the reforms must take place. The aim is to improve the current system of handling and responding to clinical negligence claims. We expect those who are harmed or injured to receive appropriate and adequate compensation, and an apology and an explanation of what went wrong where costs are reduced. That would cause less trauma to all involved. I look forward to discussing these issues further with my hon. Friend as we set out what changes must occur throughout the NHS in the interests of patients and the medical profession, including clinicians.

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