Select Committee on Public Accounts Minutes of Evidence


Supplementary Memorandum submitted by the Department of Health (PAC 01-02/72)

Question 25: What percentage of patients whose claims are outstanding for five years or more die before the claim is finalised?

  The NHSLA database does not have a data field for "reason for withdrawal of claim". Therefore, figures are not held centrally of reasons why claims are withdrawn (in response to a later question from the Chairman (question 153) Mr Walker said the NHSLA did not have this information).

  Claims may be withdrawn for many reasons and claimants don't necessarily tell the defendant the reason for withdrawal. Reasons for withdrawal include death of claimant, but typically also include, for example:

    (i)  insufficent evidence to pursue the claim;

    (ii)   a desire not to pursue the claim; or

    (iii) withdrawal of legal aid.

Questions 85 and 86: 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 no level and maybe 100 per cent achieving level 3?

  We are committed to encouraging, and will be actively pursuing, all trusts with a view to them achieving a basic level of risk management (at level 1). However, "Shifting the Balance of Power" means that there will be a number of new organisations—Primary Care Trusts (PCTs)—who will be starting from scratch. It must also be borne in mind that participation in the Clinical Negligence Scheme for Trusts remains voluntary. Nevertheless, we would hope to see a majority of scheme members attaining level 3 within the next three years ie by 2004-05.

Question 94: Why are The Costs in Scotland so Astronomically Smaller Than Costs in England?

  Below is a summary of our investigation into the reasons why Scottish claim settlements appear to cost much less than English claim settlements. Much of the conclusions are conjecture that may need further investigation.







Health Provision





Claims settled










Closing Provision





Contingent Liability




Not known yet

New claims lodged





Percentage litigation spend






  There are about 40 Trusts in Scotland. In England there are about 400.

  Cost figures in 2000-01 still subject to audit. 2m of the 6.5m on 2000-01 is thought to relate to two claims in one Trust.

    —  In Scotland, all clinical negligence claims are handled by the Central Legal Office (CLO), a division within our Common Services Agency (CSA).

    —  Trusts' and Health Boards' provisions figures are based on CLO estimates of liability, ie likelihood of settlement and cost.

  CLO's track record in estimating provisions is currently under discussion between Audit Scotland and the Health Department. Analysis of claims settled in 1998-99 and 1999-00 showed CLO over estimated settlement value by an average of 42 per cent per annum, ie claims either settled at a lower cost than anticipated, or more than expected were successfully defended or abandoned.

    —  Approximately 70 per cent of claims lodged are abandoned or dismissed.

    —  At any one time, CLO will have approximately 1,500 claims on their books, ie around three year's work

    —  Time taken to process a claim will vary according to nature and complexity:

    Court cases—two years to seven years;

    Non-court cases—four months to four years

    —  Overall average time to clear the more complex cases is approximately three years.

    —  Approximately 90 per cent of settled claims (150 per annum on average) are settled by agreement rather than as a result of a Court award.

    —  Value of settlements in an average year:

    60 per cent settled at less than 10,000;

    30 per cent settled between 10,000 and 50,000;

    10 per cent settled over 50,000.

    —  CLO's costs account for approximately 16 per cent of all costs.

  Possible reasons why Scotland's clinical negligence performance is not proportional to that in other parts of the United Kingdom may include:

    —  CLO is the sole handler of claims and has considerable skill/experience in clinical negligence field, whereas in England the NHSLA only (currently) deals with CNST claims above the excess;

    —  Workforce is relatively static;

    —  Differences in legal aid criteria.

  There is no automatic "limiting" in the Scottish scheme of things. The claim handlers in Scotland (CLO) follow a similar process to that by those in England, ie

    assess the extent to which the trust has been negligent;

    assess the consequential hardship/future care needs for the pursuer (plaintiff) in monetary terms;

    and then negotiate the settlement on the most favourable terms to the trust as possible.

  All clinical negligence claims in Scotland are handled by CLO. It is not unreasonable to assume that their knowledge and considerable experience in dealing with these cases has made them more effective (than a non-centralised legal service) in defending cases and in limiting the level of liability on which the settlement is made. Assuming that has been the position for some time, then there may be a case that the "going (settlement) rate" for similar cases north and south of the border will, by virtue of precedent, traditionally be lower in Scotland than in England.

  Secondly, any attempt to compare and reconcile the settlement data on national claim numbers and settlement values per head of population will give very misleading results. Any analysis needs to be done at lower levels. For example, like Scotland the most costly areas for settlements in England will be obstetrics and gynaecology. To make a meaningful comparison would require an analysis of the incidents (e.g child brain damage) on which claims are made relative to the number procedures from which they can occur (eg births). If this is measured in terms of incidents per, say, 100,000 head of reckonable population (women in this example) it should be possible to see the relative degrees of negligence between the countries.

Account also needs to be taken of the relative number of high risk (for costly negligence) procedures undertaken. To continue with the example above, it may be that Scotland has a lower birth rate than in England. If so, then a greater number of births, with a higher level of recorded negligence in that speciality, and a traditionally higher rate of settlement on associated claims, will soon create a financial gap between Scotland and England.

  It may be that England has a higher number of claims in surgical procedures than Scotland, who have a greater proportion of medical claims. And, if the average cost of a settlement for surgical negligence is higher than that for a medical one, and adding the other possible variables that are illustrated above, the financial gap would widen further.

  Most of the above is conjecture demonstrating the difficulty, indeed the danger, of trying to draw conclusions from exceedingly broad data. A way forward for the Department is to undertake lower levels of analysis of claim data, not only to explain the differences between England and Scotland, but also to identify where the risks of negligence need to be tackled through, for example, clinical audit and risk management initiatives. The latter is being addressed through initiatives such as the CNST and Controls Assurance. It may also be worthwhile to have some discussion between CLO and representatives of claim handlers in England and we will consider how valuable that might be.

Questions 100 and 108: With regard to the backlog of cases, do you have any idea what the situation is in the year to 2000-01?

  The data presented by the NAO in their report combined survey data (which enabled the NAO to estimate the numbers of claims below the excess) with that held on the NHSLA database for claims above the excess. We are only able to compare the data held by the NHSLA.

  In line with the NAO report which reported on Existing Liabilities Scheme (ELS) data, comparing known ELS data we find:

  In 1999-2000, the NHSLA received 1,687 claims and 4,992 were cleared;

  In 2000-01, the NHSLA received 1,097 claims and 2,347 were cleared;

  From April 2001 to 30 October 2001, the NHSLA received 533 claims and 1,033 were cleared.

  This clearly indicates that the NHSLA is making significant inroads into the backlog of claims as Mr Walker stated to the Committee.

Question 112: Before the Bristol heart report came out was there any intention to look at the possibility of moving to a no fault compensation scheme?

  10 July 2001—The Secretary of State for Health announced the White Paper for reform of clinical negligence system.

  18 July 2001—Publication of the Inquiry into the management of children with complex heart surgery at the Bristol Royal Infirmary (BRI).

  The system for dealing with clinical negligence claims has been under consideration for some time—the NHS Plan contains a commitment to explore possible reforms to the system. The press release on 10 July stated clearly that the scope for introduction of no-fault compensation would be amongst the issues that the Chief Medical Officer's advisory committee would explore. The BRI report picks up on many of the issues which provide context for the 10 July announcement, including those raised in the NAO report being examined by the Public Accounts Committee.

Question 128: With Regard to Claims, can you Supply Figures on a Regional Basis?

During 1999-2000 The Department of Health collected quarterly monitoring data, by region on numbers of outstanding ELS claims. This data has not been published and is unvalidated. Totals for each region are set out in the table below.


Numbers of Claims at 31 March 2000





Northern & Yorkshire


North West


South East


South West




West Midlands





  This is the latest data available.

Question 146: There are 22,000 People Waiting in a Queue, Taking an Average of Five and a Half Years. Do you Know the Cost of these Delays?

  It is not possible to estimate the additional legal cost on a case that is delayed as it is governed by the activity being undertaken by the claimants legal team.

  We can, however, assess the "bureaucratic" cost by assuming that each outstanding case will be looked at on average once per quarter for about one hour in duration. An average claims manager may earn 30,000 per annum (ie 225 working days) and four hours (ie half a working day) equates to a "bureaucratic" cost of 67 per case, or 1.54m to review all 23,000 outstanding cases per year.

  We must point out, however, that a significant number of these claims will be:

    (i)  small claims that flow through the system in one year and require no review;

    (ii)  cases held for review in several years time under court direction (eg cerebral palsy cases where a future care assessment cannot be undertaken until the child is at least six to seven years of age).

  Bearing in mind the comments at (i) and (ii) above, we estimate that the cases requiring review might be considerably less and the figure of 1.54m is a worst case scenario.

Department of Health

November 2001


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