Examination of Witnesses (Questions 60-79)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
60. I am sorry, basically what he is saying is that the system is inherently unfair, that patients do not get the compensation and many people who want to claim cannot claim because they are restricted from doing so and the system does not seem to be working. If you read the report, he is absolutely right that the system is not working at all, is it? Let us look for example at page 2, paragraph 3. It says there that because of the difficulty of pursuing claims few people are able to do so. It says that unless legal aid is available a lot of people are excluded from the legal process. What it is saying is that efforts have actually been made to try to solve that particular problem, but it has not made a great deal of difference, has it?
(Mr Orchard) Dr Barton's point is that even less legal aid should be available, not more.
61. I am not sure whether he is saying that. Do you think he is?
(Mr Orchard) Yes.
62. Perhaps he is. Whether he is saying that or whether he is not saying that, the whole system is not working anyway, is it? Has it made a difference?
(Mr Orchard) Yes.
63. Tell me in what way it has made a difference.
(Mr Orchard) The changes we have made and the changes the Litigation Authority have made and are still making have in my view made a significant difference. They have concentrated the work on behalf of claimants into a relatively small number of expert firms, so they will pursue good cases and drop bad cases. The funding code has tightened up considerably the volume of cases which could be funded. Contracting has brought in risk sharing and given us much greater control over individual cases. If you ally that to what Steve Walker was talking about in relation to the £15,000 to £25,000 value cases, you have a much more coherent and sensible system. I am not arguing that it is perfect but it is a lot, lot better than what was there five years ago.
64. Dr Barton is perhaps arguing in terms of legal aid that there should be less legal aid. On the other hand it could be argued that there should be more legal aid and that everybody should be allowed legal aid. What you have actually created is a litigation culture which they have in the USA, have you not?
(Mr Orchard) In relation to clinical negligence?
65. Yes, certainly in relation to clinical negligence.
(Mr Orchard) I would not have said that at all.
66. Solicitors are going round scavenging for work. They are chasing ambulances.
(Mr Orchard) Not in clinical negligence they are not.
67. Yes, they are. Are they not? Let me give you an example. As you came out of the local hospital in Durham, there was an advert on the walls in April: contact us if the nurse has made it worse. Is that scavenging? I shall tell you who it was. It was from solicitors called Phillips & Company, Solicitors. It was absolutely appalling. If the nurse has made it worse contact us. Is that not scavenging for work?
(Mr Orchard) There is a fine line to be drawn between informing people of their rights and solicitors scavenging for work. I would repeat the point. Solicitors who pursue bad cases and are unsuccessful lose money.
68. Do you think it is acceptable for a solicitor to advertise on a huge poster on coming out of a district hospital: if the nurse has made it worse, contact us? Do you think that is acceptable?
(Mr Orchard) I am not saying it is acceptable or unacceptable. I am trying to draw a line. There is a world of difference between informing people of their rights and ambulance chasing. I have no problem with solicitors informing people or anyone else come to that. We do it at the LSC: we inform people of their rights. We publish a leaflet which is drafted by the National Consumer Council and the Association of Victims of Medical Accidents in association with the National Health Service, which is available in most public places, informing people of their rights if they suffer as a result of poor health care.
69. The Secretary of State for Health saw the advert and he was not too pleased about it either.
(Mr Orchard) There may be a line somewhere between our leaflet and that advert and that may have gone over that line. On the general point, people are entitled to be informed of their rights.
70. I do not agree with you. What evidence do you have that the new Conditional Fee Agreements have improved patient access to justice?
(Mr Orchard) Conditional fees are available in clinical negligence to those who are not eligible for legal aid for financial reasons. They have improved it in the sense that they were not available before the Act made them available. Although it is not the whole answer, it has certainly improved it because it has given more people access to the lawyers and the courts.
(Sir Hayden Phillips) Since changes were made to make conditional fees more attractive we have commissioned over the last two years a major piece of research so we can run along and collect real data on what is actually happening out there covering all personal injury and including clinical negligence. I hope that will be able to be published some time during the middle of next year. This is all a very recent development and we have to build up a picture now of what is happening: both the changes which Steve has mentioned which have been made very forcefully and energetically to improve quality and standards in legal aid; and also changes on Conditional Fee Agreements alongside new processes in the courts. All those have taken place over the last two years. A lot of the cases we are dealing with now, 85 per cent of bills paid in 2000-2001, all relate to clinical negligence cases which pre-dated the sort of changes which Steve, I and Steve Walker have been talking about. That is a very important point to make.
71. I would sum it up by saying that fewer people are able to get legal aid. We have a system whereby if the accredited solicitor thinks there may be a risk he will not take on the case. It is no good wagging your head, it is a fact. If they cannot get insurance, then they cannot proceed because they dare not lose the case. So the situation is now worse than it has ever been.
(Mr Orchard) How can you say fewer people are eligible for legal aid? I do not follow that. How can you conclude that from what we have just said?
72. But there are fewer people getting legal aid now; the rules make it much more difficult to get legal aid..
(Mr Orchard) There are not fewer people eligible. Fewer people might be getting it because we have cut out the majority of the poor cases.
Chairman: It is quite important that the witnesses do not ask questions of the members. The members should ask questions of the witnesses.
73. The fact of the matter is that there are hundreds and thousands of people who do not qualify for legal aid and who have to go down the route which has been put forward for them. That route is much more difficult because they are not getting legal aid, but they also have the problem that if the solicitor who is accredited does not think he can win the case he does not take the case on. Even if he does think he can win the case and he cannot get insurance to cover it they cannot be taken on. How is that better for anybody who has a problem?
(Sir Hayden Phillips) You can put a different interpretation on it and you would expect me to say that I would do so. First of all fewer certificates have been issued for legal aid and that is a recognition that we are now trying to fund those cases much more carefully which have a greater chance of success and thus we are both safeguarding the taxpayers' money and we are enabling people in good cases to exercise their rights. Secondly, Conditional Fee Agreements have opened up an opportunity for people to pursue cases which they could not have pursued before at all. I hope that the research will demonstrate, both in personal injury and in clinical negligence, not necessarily in so many small cases but in medium-sized and larger ones, that people will pick that up as the market grows, provide sensible insurance products, recognising that the solicitors who will be involved in that process have to be approved by the Law Society and others as being qualified to do the work. That is the other interpretation we could put on facts which I think we have in common.
74. Paragraph 7. New claims have risen by something like 75 per cent between 1990 and 1998. Why is that? Is there more negligence about?
(Mr Crisp) We have looked at that and we have also made some international comparisons. Claims here seem to be growing at a lower rate than elsewhere. I suspect there is a different climate around in terms of people thinking about litigation.
75. So we do have a litigation culture then, which has been created by what you have done.
(Mr Crisp) I am not sure that is the case at all. If you look across the world at the preliminary figures we have looked at, this is actually growing slower than it is for example in France.
76. I am not particularly bothered about France. The cost of claims has risen from £200 million to £1.5 billion in five years. That has actually been put into the estimates. It also says in the report that the value of outstanding claims with a 50 per cent or higher chance of success is something like £4 billion. That is an incredible amount of money. It seems to me that the fact is that there is some incompetence somewhere in our National Health Service.
(Mr Crisp) You have a conflation of a number of different issues there. The first one is a change in accounting practice in terms of how we have actually been accounting for our claims. So the figure you can get up to, which I think is actually £3.9 billion, is it not, if I am working on the same figures as you are ...
77. It says £2.6 billion put aside for 1999-2000 and £4.3 billion for those with a chance of success. Paragraphs 2.3 and 2.4.
(Mr Crisp) The issue we need to get to is not the accounting treatments, because frankly there are different accounting treatments on some of these different figures from where we have been in the past. At the moment we have £2.6 billion made in provision plus a further estimate made by the National Audit Office of what might happen with the other outstanding claims. This is the worst possible case. This is a significant and worst possible case. It is high. It has grown. It has grown significantly. We need therefore to do two or three things. Firstly we need to get our risk management much better, as I was talking about to Mr Rendel earlier. We are doing a lot of things around that. The point about international comparisons and indeed comparisons with other industries will bring out whether this is a trend which is purely about the Health Service and therefore is something to do with incompetence within the Health Service, or whether it is wider trends in society toward litigation. It seems to us that as you look at the figures we have from abroad actually in Britain we are substantially lower than a number of other countries and growing at a slower pace. Indeed if we look at other industries, we see some of the same things. That is not an excuse, however, for us not putting in place professional claims management, which is what you have heard a great deal about from Mr Walker and that has been coming in for the last five years; in addition to that proper processes within hospitals to reduce the risk of incidents happening. There is a whole string of things we are doing about that which I would happily talk about if the Chairman would wish me to.
Chairman: Thank you very much. We might come back later to that.
78. Do you think that NHS trusts should try to meet the risk management standards of the clinical negligence scheme?
(Mr Crisp) Not only do we do that, we include their rating on clinical negligence in the performance ratings which we have recently put out. We have given them incentives to do so as well.
79. Do you think they should meet the risk management standards?
(Mr Crisp) That is the intention, for us to get precisely to those points.