Complaints and litigation - Health Committee Contents


Written evidence from the Medical Protection Society (CAL 12)

SUMMARY

Complaints

—  The increase in complaints is not wholly attributable to an increase in patient dissatisfaction.

—  The new complaints system can work well where it is fully understood, properly supported and correctly followed.

—  There must be adequate resources to deal with complaints properly and to a high standard.

—  Clarity is sought on how complaints about commissioning will be managed, and how the complaints role, currently performed by PCTs, will be carried out in future.

Litigation

—  UK compensation levels for the most severely injured are now amongst the highest in the world, including most states in the U.S.

—  MPS's highest UK settled claim to date was over £8 million.

—  Inflated litigation costs are due to increasing claims, increasing legal costs, damages inflation, and legal and regulatory change.

—  We support the recommendations of Lord Justice Jackson in his review of civil litigation costs.

—  Claims arising from NHS treatment should be exempt from the provisions of the Law Reform (Personal Injury) Act 1948.

—  We support and advocate the development of an open reporting and learning culture.

—  MPS supports proposals which enable early identification of adverse incidents. Thorough investigation and fairness for all involved must be central to any new scheme.

—  No fault compensation schemes can appear attractive but constructing a scheme is highly complex and most studies show them to be prohibitively expensive.

INTRODUCTION

1.  The Medical Protection Society (MPS) is the leading provider of comprehensive professional indemnity and expert advice to more than 270,000 doctors, dentists and other health professionals around the world. We have over 100 years experience and operate in 40 countries around the world. In the United Kingdom around 170,000 doctors, dentists and other healthcare professionals are members representing around 50% of all doctors and 70% of all dentists.

2.  As a mutual, not-for-profit organisation we offer members professional support and expert advice, on a discretionary basis, with legal and ethical problems that arise from their professional practice. This includes clinical negligence claims, disciplinary and professional regulatory investigations, inquests, complaints and general ethical and professional advice.

3.  We advocate a culture of openness and provide training in open disclosure and better communication for health professionals. In our publications we promote a learning culture, making use of our claims experience to highlight common mistakes and spread awareness of specific risks.

COMPLAINTS

The reasons for the recent sharp rise in NHS complaints

4.  There are several reasons for the recent increase in the number of complaints. We do not believe it is wholly attributable to an increase in patient dissatisfaction.

5.  There has been a change to the definition of a complaint. Prior to the introduction of the April 2009 Regulations many complaints were dealt with informally as problems through local Patient Advice and Liaison Services (PALS). Since 2009, anything that is not resolved within 24 hours is classed as a complaint. This has resulted in a substantial rise in reportable complaints.

6.  Cultural changes within the NHS, where feedback is invited more frequently means patients are generally better informed about both the care they receive and the complaints process itself. A further factor is the increased media focus on the performance of the NHS.

The effectiveness of the new complaints system introduced on 1 April 2009

7.  The process can be effective where maximum use of the planning stage is made to listen to the complainant's concerns, apologise, and discuss with the complainant the way the matter is being handled. Failure to do this, results in misunderstandings and a lack of focus on the outcomes sought.

8.  A particular weakness is the level of training provided to practices. Historically, this has been provided by PCTs but stretched resources and their forthcoming abolition has affected this aspect of their role. This leaves practices isolated and ill-informed, and needs addressing.

9.  There remains considerable anxiety about apologising or admitting errors, leading to disciplinary action or litigation. Although members who approach MPS receive advice on these issues and we actively encourage a culture of openness, we believe there is a general need for proper resources, support and training to be provided and centrally coordinated.

The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Service); and referral to the Ombudsman

10.  The new regulations took away the obligation on PCTs to provide conciliation, which was often extremely helpful in resolving complaints. Although some have retained this service, we find that it is patchy and should be reinstated, possibly through the new HealthWatch bodies.

11.  MPS believes the complaints system can work well where it is fully understood, properly supported and correctly followed. Some of the areas where improvement is needed to ensure effectiveness are:

—  Initial planning.

—  Flexibility over how matters are investigated.

—  Drawing conclusions from the evidence, identifying areas of poor service and putting this right.

12.  In the interests of openness and balance, the complainant and the complained against should receive the same information. At present, when a decision is made by the Parliamentary and Health Service Ombudsman (PHSO) not to investigate a particular complaint, a detailed letter is sent to the complainant, but the complained against are merely told that no further action is being taken. We recognise the PHSO has recently expressed a desire to share information about complaints more widely, and we note the Department of Health's intention (set out in Liberating the NHS: Legislative Framework and Next Steps) to strengthen these arrangements. We look forward to seeing the detail behind this proposal in the Health Bill once it is published.

13.  The Office of PHSO does not provide a guiding tariff for financial remedy (although the Local Government Ombudsman does). We believe there needs to be greater understanding of how these decisions are made and levels of payment calculated. We also believe the complaints and clinical negligence systems should be kept separate; we do not feel it is appropriate for the PHSO to comment on whether or not a case involves negligence.

The role of Patient Advice and Liaison Services as a "gateway" to the complaints system

14.  We recognise the advantages for organisations of close, joint working with PALS and we believe this should be encouraged more than happens presently. There must be adequate resources to deal with complaints properly.

The Government's plans for future complaints handling arrangements

15.  We believe greater clarity is needed about the process for:

—  Patient's who may not wish to complain directly to their GP.

—  Complaints made about a commissioning decision.

How data from complaints will feed into the planned new commissioning arrangements

16.  Consortia and the National Commissioning Board should have access to regular and anonymised data returns detailing complaints lodged with commissioned services to inform future commissioning decisions. Data needs to be meaningful and collection processes robust.

17.  We believe the patient experience should be simplified so that patients are dealt with fairly. This would include having a named person with overall responsibility for each complaint.

LITIGATION

The cost of litigation against the NHS

18.  MPS provides comprehensive professional indemnity to GPs, dental practitioners, and doctors working in private capacity in secondary care. The NHS Litigation Authority (NHSLA) provides indemnity to clinicians working for the NHS in secondary care, via their employing hospital trust.

19.  MPS indemnity is provided on an occurrence basis. As long as the clinician was a member at the time of the incident, help can be requested at any time in the future when needed.

20.  The number of claims made against GP members in England has increased by 39% over the last three years. During the same period the estimated average claim size has increased by 22%. Between 2003 and 2009 MPS settled more than 6,600 medical and dental claims in the UK.

21.  MPS has experienced a sharp rise in the size of claims made against clinicians in England and Wales. The highest medical claim settled by MPS to date was over £8 million. The highest UK dental claim settled by MPS was approximately £775,000.

Reasons for the inflation of litigation costs in recent years

22.  Four main factors have led to inflated litigation costs:

—  Increasing claims (social change, encouraged by aggressive advertising by claims management companies).

—  Increasing legal costs (impact of conditional fees and after the event insurance).

—  Inflation of damages (general inflation but also impact of higher costs of personal care and additional heads of loss).

—  Legal and regulatory change, inflating damages (changes in the discount rate, introduction of periodical payments, and indexing periodical payments in line with earnings inflation rather than RPI).

23.  Without legislative change, inflation of damages is likely to continue unabated and the question of whether society can afford such levels of compensation will be left unaddressed.

24.  The UK courts apply the established principle of tort law compensation, to put the claimant in the position he would have been in but for the wrong done to them; each case is assessed on an individual basis. It is not the responsibility of the courts to consider the fair allocation of limited NHS resources or contrast the care afforded to someone who can establish negligence with that afforded the victim of disease or other accidental misfortune.

25.  Claimants are entitled to claim the full extent of their loss, so the high earner will recover their loss of income in full as will the worker on minimum wage. The fact that the high earner may have been able to protect their level of income by permanent health insurance is disregarded.

26.  Furthermore, in considering a claim made against the NHS the court does not consider whether care is available freely from the NHS. Instead the Law Reform (Personal Injury) Act 1948 provides that the possibility of avoiding medical expenses by taking advantage of NHS facilities is to be disregarded. Nor is there any requirement that a claimant awarded damages for a particular loss, actually spends their award on meeting such costs. For example, a claimant may recover from the NHS the cost of private care but then take up free NHS care.

27.  UK compensation levels for the most severely injured claimants are now amongst the highest in the world. A debate is needed on the levels of compensation that are fair to the injured patient, and to wider society. Choices can be made and tort reforms in other jurisdictions have included:

—  Thresholds of impairment before claims can be brought, to eliminate low value claims.

—  Limits on general damages for pain and suffering.

—  Limits on future loss of earnings claims by reference to average earnings.

—  Setting discount rates at less conservative levels.

—  Making evidence of collateral payments admissible to reduce damage awards.

28.  Another reform would be to exempt claims arising from NHS treatment from the provisions of the Law Reform (Personal Injury) Act 1948.

The impact of conditional fee arrangements on litigation against the NHS

29.  MPS considers that there is something wrong with a legal system where lawyers receive more than patients in 72% of claims.

30.  The graphs below show damages reaching patients as a percentage of the total cost of the litigation process:

31.  Appendices A and B set out the proportion of legal costs incurred (in claims against GPs and dental practitioners) as a percentage of the total cost of the litigation process. They also show that claimant costs have increased whilst defence costs have remained at a consistent level. Conditional fee arrangements have driven up claimant's legal costs to excessive and disproportionate levels. With claimants litigating free of any exposure to personal financial risk, there has been no effective constraint upon claimants' lawyers' charges, nor on the time they incur on cases in which damages are recovered.

32.  We recognise for complex claims, claimants will require legal assistance. Our concern is not that costs are incurred but that the costs incurred are often disproportionate and place an unreasonable burden on defendants.

33.  The drivers of legal costs inflation have been fully explored by Lord Justice Jackson in his recent review of civil litigation costs. MPS welcomes his recommendations, which will provide a fairer and more accessible system of civil justice and increase the proportion of litigation expenditure going to patients rather than lawyers.

The effect of litigation on the development of an open reporting and learning culture in the NHS

34.  MPS has for many years supported the development of an open reporting and learning culture. We believe this enhances trust between healthcare professionals and patients, helps to prevent mistakes re-occurring and reduces litigation which research suggests is often the product of distrust and poor communication. MPS's philosophy is to ensure patients who have a well founded claim in negligence receive fair and swift compensation. We have no wish to see fear of litigation obstructing good, open communication about mistakes.

35.  MPS works with the NHSLA to encourage giving apologies where due, confirming they do not prejudice any legal process. We provide training in open disclosure and better communication to clinicians. In our publications we promote a learning culture, making use of our claims experience to highlight common mistakes and spread awareness of specific risks.

36.  Clinicians have ethical and professional obligations to be open with patients about mistakes. MPS consistently advises members to be open with patients after a mistake however we know many are fearful of the consequences. More should be done to encourage openness, but fear of litigation is not the main issue; disciplinary and regulatory consequences are a greater barrier. The investigation of mistakes needs to focus on preventing future errors rather than attributing blame. There is also a need for mentoring, training and support.

37.  There is evidence that pro-active management of adverse events reduces complaints and claims. We advocate a culture of openness through:

—  Dealing openly and fairly with the patient.

—  Analysing adverse events to learn from them.

—  Implementing what's learned.

38.  MPS supports clinicians to do this and in 2010 we ran nearly 100 workshops on managing adverse outcomes.

The Government's intentions regarding the implementation of the NHS Redress Act 2006

39.  MPS supports proposals that enable early identification of adverse incidents and allow claimants to receive compensation, where appropriate, quickly and efficiently. Thorough investigation and fairness for all involved must be central to any new scheme.

40.  Shifting the balance away from settling clinical negligence claims purely with financial compensation toward a more comprehensive package of redress for patients including an apology, explanation and remedial treatment, is welcomed. However, the scheme should be fully tested in secondary care before consideration is given to implementation in primary care.

41.  In his recent review, Lord Young indicated he would like to explore the possibility of extending the low value Road Traffic Accident (RTA) scheme to all personal injury cases including clinical negligence claims and extending the remit of the scheme from £10,000 to £25,000.

42.  Whilst the speed and low costs of the scheme are attractive, we have concerns that it would not be suitable for clinical negligence claims which are usually more complex than road traffic accident claims. We consider that most patients would require the assistance of a lawyer to help them understand the process and to evaluate whether their claim had any merit. Even the most cursory assessment of a claim requires the claimant's solicitor to seek disclosure of the claimant's medical records, which may be substantial, and possibly independent expert evidence to establish the extent of the injuries claimed, in order for the claimant's lawyer to decide whether the case is suitable for inclusion in the scheme.

43.  It is important to note that a low value clinical negligence claim can be as complex as a high value claim. We appreciate that a claimant can only establish that he or she has a claim with the assistance of a lawyer and that there must be costs associated with this. Those costs would be considerably more than the RTA scheme currently allows.

The possible benefits of a statutory right to compensation for "treatment injury" from an independent fund, without the need to prove negligence, as required under tort law

44.  MPS has closely followed debates around alternatives to the current clinical negligence compensation system. As an international organisation, MPS has experience of no fault schemes in other countries, particularly in New Zealand, which has operated a no fault system since 1972.

45.  We understand the appeal of the no fault principle and recognise the moral and social justifications for its introduction. However, experience in other countries shows that no fault schemes do not incentivise improvements in patient safety, result in lower compensation levels, and impose significant costs on the taxpayer.

Encouraging the use of mediation before litigation is initiated

46.  Mediation is most useful when the parties have a mutual desire to resolve issues but cannot without assistance break down the barriers to communication and understanding caused by hurt, suspicion or resentment between them.

47.  Mediation can help avert litigation if used early and as a true alternative to litigation. Advantages include the ability to deliver outcomes a patient may value more than financial compensation, and which litigation rarely delivers, such as being heard, acknowledged, understood, reconciled, receiving non-financial redress or knowing that risks will be identified, addressed and better managed in future. These are also positive outcomes for healthcare professionals.

48.  MPS would welcome more use of mediation as a tool in the complaints process. It should be considered as a step in that process, not just a precursor to litigation. We believe there is great scope for reduced litigation and more satisfying outcomes if more resource is devoted to resolving disputes in their earliest stages.

December 2010

APPENDIX A

CLAIMANT AND DEFENCE COSTS AS A PROPORTION OF TOTAL LITIGATION COSTS—GP MEDICAL CLAIMS

APPENDIX B

CLAIMANT AND DEFENCE COSTS AS A PROPORTION OF TOTAL LITIGATION COSTS—DENTAL CLAIMS




 
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Prepared 30 June 2011