Examination of Witnesses (Questions 80-99)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
80. Do you agree that all trusts might reasonably be expected to meet compliance level one, which according to the report at paragraph 1.13 represents "basic elements of risk management that should be easily attainable".
(Mr Crisp) It is because we believe that we need to do more on this that we have put in place new performance management arrangements.
81. But you would think that all NHS trusts might reasonably be expected to meet compliance level one?
(Mr Crisp) And higher.
82. You are presumably as surprised as I am to learn that 24 per cent of NHS trusts do not even achieve level one.
(Mr Crisp) "Surprised" was not actually the word I would have used. It required action.
83. That is right. If you look at the elements of the risk management standards which are in Table 4 on page 10 of the report, they include things such as appropriate information being made available to patients on the risks of the proposed treatment, a comprehensive medical record system, clear communication through key stages of maternity care. Presumably you expect all trusts to be able at least to meet the basic elements of that package.
(Mr Crisp) Yes, that is what we want.
84. What are you doing to the 24 per cent of trusts which do not.
(Mr Crisp) We have two or three things in place. Firstly, just by being part of the Clinical Negligence Scheme for Trusts: the fee they pay into this system depends on their rating on that, so there is a clear financial incentive. Secondly, it has been a criticism of the NHS that we have tended to performance manage organisations on activity and finance and not pay enough attention to quality. Since then we have done a number of things. Firstly, we have put another incentive in, as we talked about with the performance rating. Probably more important than that, they were putting in much more to do with training. We are putting in the new arrangements for critical incident reporting. We have set up a new authority called the National Patients' Safety Agency, which is actually charged with making sure that we identify "adverse incidents", potential problems, so we actually have methods for doing that. We have put that in place. We have also put in a new organisation to help us identify where we think we may have problems with particular doctors and to deal with that in terms of training arrangements. A whole battery of things to deal with what is a real issue.
85. When would you predict that Table 5, if it were published again in a future NAO report, would show zero per cent on the number of trusts achieving the no level and maybe 100 per cent achieving level 3, which currently only one trust achieves?
(Mr Crisp) I cannot speculate at the moment.
86. Go on.
(Mr Crisp) I could perhaps offer you a note during the course of the meeting when I look at the detail.
(Mr Walker) By way of explanation: you are absolutely right that there is no excuse for trusts not achieving. Since the inception of this scheme we do not take a hard draconian commercial line towards damaged patients, but we do towards trusts. Failure on any one of those measures would mean no pass at that level. The standards do have teeth, they do bite quite hard. It does mean that the trust loses a significant discount. Do not assume that a zero level trust has not passed on 11 even of those 12 standards.
87. Although it does say level one is easily attainable.
(Mr Walker) Without doubt; you are absolutely right.
88. In response to Mr Steinberg Mr Orchard said that people are entitled to be informed of their rights, in reference to the advert in Durham. Paragraph 12 of the conclusions of the NAO report makes it clear that the NHS does not regard it as its business to inform patients of their rights. Would you agree with that?
(Mr Crisp) Our position on that is that where somebody has been damaged in the course of a procedure or something of that sort, the clinicians should be explaining what has happened and indeed providing an apology where that is appropriate and an explanation and so on. However, we do distinguish between an apology and an admission of liability, being two distinctly different things.
89. It says, "But the Department of Health have told us that they do not see it as the business of the NHS to advise patients that there might on the face of it be grounds to believe an adverse medical event may have been due to negligence, or suggest patients seek legal advice, or admit liability". So in fact you do not really agree with Mr Orchard who says people are entitled to be informed of their rights.
(Mr Crisp) The line I have taken there in terms of what people do is precisely in line with this, which is to say we deal with clinical matters. We talk to people about what the issues are. If there are things which need to be sorted out there and then, we do them. That is the most important thing: to rectify any damage which may have been done, to explain to people what is going on. We do indeed inform people of their rights at the point at which they may come to the complaints system or to the claims system or whatever else and it is entirely appropriate and right that we should do that. What we do not do is get consultants, who may be telling them difficult news about something which has happened, to say, "Here is the name of a solicitor".
90. So you do not volunteer information about that.
(Mr Crisp) Not in the clinical context. There is an important distinction to be made there.
91. May I move on to Wales? According to paragraph 2.16, the average value of settlements, the 1999-2000 figure which is the only figure in the report, in England was £87,000, excluding brain damage and cerebral palsy claims; in Wales the average value was only £44,000. Why is the Welsh NHS so much more effective at safeguarding taxpayers' money than the English NHS?
(Mr Walker) Please, if there are Welsh people in the room, do not be offended. The simple answer is that the main component of most of these claims is labour, the cost of care, wage loss, cost of education, whatever. There is no doubt, and the insurance industry will tell you exactly the same thing, claims settle cheaper in both Scotland and Wales than they do in England.
92. That would explain why in paragraph 2.3 of the report the provision in Scotland for clinical negligence is just £38 million, whilst in England it is £2.6 billion. I know England is a bigger country, but I do not think it is 100 times bigger.
(Mr Walker) I cannot help you there. The first thing I should say is that it is a different legal system.
93. It sounds a better legal system from the taxpayers' point of view.
(Mr Walker) I cannot help you. I do not know enough about the Scottish system. I am sorry.
94. Is it possible to have a note on why the costs in Scotland are so astronomically smaller than the costs in England?
(Mr Crisp) We shall provide what we can.
95. You talked about the roles of the NHS Litigation Authority when it was established. Do you think one of those roles is to attempt to limit the costs to the NHS of clinical negligence claims?
(Mr Walker) Yes and no. The answer is not as evasive as it sounds.
96. We are the politicians.
(Mr Walker) I certainly was not trying to make a political point. Our framework document says two things which we are at least potentially trying to make not such opposites. The first thing is that we should defend clinical negligence claims wherever possible and defend them robustly where there is a defence. Tied to that we should propagate good risk management practice, we should manage the risk management standards assessment programme, we should try to reduce the number of adverse events occurring. In parallel with that we are charged expressly with ensuring that where a liability is established patients should have access to remedies, including compensation. There is a balancing act to be struck. I do not pretend it is easy, but that is what we try to do.
97. According to paragraph 2.6, since the Litigation Authority was established, and I believe you have been in charge of it ever since then, the financial provision the NHS had to make to reflect the cost of clinical negligence claims has risen from £200 million to £1.5 billion.
(Mr Walker) Indeed.
98. More than a sevenfold increase. Do you think you have been very successful at limiting the costs of the NHS clinical negligence claims?
(Mr Walker) I can only say that I think we have been very successful in properly assessing what the true costs are. I cannot really account for the kind of provision which was made before we were in business.
99. Although there has been a sevenfold increase in the provision each year.
(Mr Walker) All I can say is that I now think that is an accurate provision. I cannot really speak for what went before.
5 Ev 21, Appendix 1. Back
6 Ev 21, Appendix 1. Back