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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
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Taken before the Health Committee
on Tuesday 10 May 2011
Mr Stephen Dorrell (Chair)
Grahame M Morris
Mr Virendra Sharma
Dr Sarah Wollaston
Examination of Witnesses
Witnesses: Desmond Hudson, The Law Society of England and Wales, Muiris Lyons, The Association of Personal Injury Lawyers, Carole Ayre, Browne Jacobson LLP, and Nicola Wainwright, Leigh Day & Co Solicitors, gave evidence.
Q305 Chair: Ladies and gentlemen, thank you very much for joining us this morning. Could I ask you briefly, please, to introduce yourselves and tell us which organisations you come from?
Muiris Lyons: Good morning. I am Muiris Lyons. I am immediate past president of the Association of Personal Injury Lawyers.
Nicola Wainwright: Good morning. I am Nicola Wainwright. I am a partner in the clinical negligence department at Leigh Day & Co Solicitors, who are claimant solicitors.
Carole Ayre: I am Carole Ayre. I am a partner in the firm of Browne Jacobson and we act for the NHS Litigation Authority.
Desmond Hudson: I am Desmond Hudson. I am chief executive of The Law Society.
Q306 Chair: Thank you very much. I would like to start, if I may, by asking you some questions about the mediation process. We have received submissions from each of you suggesting that mediation has an important role to play in resolving disputes between claimants and the NHS, and that is normal good practice by people acting on behalf of complainants. Do you feel that system is working well, that complainants feel they have access to real justice through the mediation process, or does it too often feel to the complainant like a pushaway and a sense that they are being advised, in a rather heavyhanded way, to avoid a headon collision because their best deal is going to be through something that leaves them feeling dissatisfied with the process?
Muiris Lyons: If you would like me to, I will go first on that. Mediation is a valuable tool in the lawyer’s toolkit to resolve cases on both sides. It is not used as often, perhaps, as it could be, but the NHSLA don’t enter into mediation on issues of liability. As a general rule, they are happy to mediate once they have admitted liability and they will discuss how to settle the claim. Therefore, from that point of view, it is a tool that can’t really help resolve the liability issues.
The key with all of these sorts of claims is to try and get the liability issue resolved as early and as economically as possible. Most cases, once you get liability out of the way, will settle through one form of ADR or another. It might be mediation-it is most likely to be a roundtable-or it may be through offers being made. It is a valuable tool, and one that I know the Government is keen to move forward, but you have to address the issue of liability. It is about getting mechanisms in place to get liability resolved quickly and cheaply.
Q307 Chair: Does anybody want to add to that?
Desmond Hudson: If I may, I want to build on Muiris’ point. Yes, clearly, mediation can be an important tool in the armoury of lawyers, but there may be a wider public benefit here. The written evidence you have from Browne Jacobson, if I quote them correctly, as to the reasons why people bring litigation is very instructive. By and large, it seems to me, many of the individuals who go and see a solicitor have not made a decision or are not necessarily intent on the institution of legal proceedings. Very large numbers of individuals are concerned about an explanation, an apology or, perhaps, a reassurance that the individual or individuals responsible will be held to account in some shape or form. One wonders whether mediation-if I might use that word loosely rather than as a term of art in terms of ADR-could play a very important role. It is certainly the view of The Law Society that it could have wider benefits, other spinoffs, which go simply beyond it being a formalised or semiformalised part of a litigation or dispute resolution process.
Carole Ayre: Once you have got well down the track of litigation, it is quite hard to move into a formal mediation process. We find there are many ways of resolving a claim without, necessarily, having to go through a formal mediation process. There are many types of ADR which are employed to settle claims.
As to how the claimants feel about formal mediation, I don’t think I can answer that because. Obviously, I don’t act for claimants.
Nicola Wainwright: If I can come in on that, as has been explained, formal mediation is only one form of ADR and, to be honest, has happened relatively rarely. Formal mediation, when the client is actually in the room and feels they are playing a part in the whole process, can be very useful. On the opposite side, if the other party isn’t buying into the mediation and is there purely to comply with court directions, it is a very frustrating and upsetting experience for the claimant.
In the last 10 years, I have been to two formal mediations. In the first, the claimant was very happy because he felt his voice was heard. He was able to show the defendants why he was unhappy and they accepted that, which, for him, was vitally important. In the other, the defendant refused to negotiate at all. We sat in a room for half a day and then they went home.
From our point of view, if both parties are properly buying into it, it can be very helpful.
Q308 Chair: But you agree, do you, that, in the majority of cases, it is only really useful once basic liability has been accepted? It is not a process for determining liability.
Nicola Wainwright: Yes. Also, from a claimant point of view, before you have reached the point of investigating liability, there is no equality of arms. If you ask a claimant to go in right at the beginning of the process, when they have very little knowledge and they don’t have their own expert evidence, they feel at a disadvantage to the NHS which already has some knowledge.
Q309 Valerie Vaz: From the legal point of view, has the preaction protocol in clinical negligence cases and the role of the judge in case conferences helped to move things along?
Muiris Lyons: I can probably deal with the protocol in question because I have just been looking at that. The current protocol for clinical disputes doesn’t even refer to mediation. We have proposed a draft-which has industrywide approval and is with the MoJ at the moment-which is more than paying lip service to mediation. It is encouraging active steps to be taken with ADR throughout the process. That was sadly lacking in the original version of the protocol.
Once you get to a court, of course, the key is issue is that you have to resolve the liability. Once you do that, judges are very keen to encourage ADR and you can do it in a number of different ways. Once liability is out of the way, these cases do tend to settle. The NHSLA’s own statistics show that trials are very rare-113 in the last three years. Cases going to court are quite rare. Once liability is resolved, either the claimant disappears out of the picture because there is no claim, or liability is admitted and the parties are able to reach a sensible compromise.
Q310 Valerie Vaz: Before we go on, does that gap between the claim and admitting liability take longer with the Litigation Authority? Could you see that move to a much earlier resolution?
Muiris Lyons: You may be aware that there are discussions at the moment. I am involved with the NHSLA about a new fasttrack scheme for handling lowervalue claims based, roughly, on the RTA process that has been in for about a year. The idea there, in lower-value claims, is to get the issue of liability resolved very quickly. Therefore, you bring down expense and reduce the time involved. That is an initiative everybody welcomes, because at the heart of all of these cases is getting a response on liability as early as possible, but it has to come, as has been said, at a time when you have equality of arms. The claimant has to have had their own medical records and had a chance to see what is in them before you can start saying to the NHS what you think they did that was wrong.
Q311 Valerie Vaz: Is that the delay?
Nicola Wainwright: There are a number of factors. First, as Muiris said, part of the problem is the claimant has to prove that something was wrong. I should say "part of the issue". It is not necessarily seen as a problem by the NHSLA or other insurers. For the claimant, that means there is a lot of work that goes into even putting the case to the defendant. They have already gone through that process by the time they are in a position to do anything, unless the defendant is willing to make an early admission. Obviously, costs are going to be incurred in any event. Our experience with the preaction protocol is that, in many cases, it has led to further delay in that we serve a letter of claim, the letter of response doesn’t really add anything to what was said in the complaint and it is only when we issue and serve court proceedings that the claim is taken seriously. That is one of the issues.
Carole Ayre: I can only speak from where I stand, which is usually after a letter of claim has been received and, very often, after proceedings have been issued. When we first get a claim, it is obvious to us that the issues are not necessarily straightforward and the allegations being made at the point at which proceedings are issued are not necessarily the same allegations as were originally made, either in a complaint or, indeed, in the letter of claim. Thus, while the claimant has already done a lot of work in investigating liability issues, for us, acting for the NHS Litigation Authority, there is a lot of work to do before we are in a position to respond to the case. However, since the NHSLA have started instructing experts before responding to the letter of claim, that has speeded up the response to the claimant. There has been a sea change there to great advantage in terms of the delay issue.
Muiris Lyons: May I add that, with the proposal for a revision of the protocol, which is with the MoJ, the idea is to introduce a new intermediate step to try to speed things up even further. The difficulty at the moment is that a claimant will send a letter of claim to an NHS trust but the trust simply doesn’t have the resources to investigate, properly, every single claim letter. The claimant then goes away and starts preparing his own case, getting reports in and so on, and more details are given during the course of the case.
The idea now is that you have an intermediate stage where you give almost a heads up to the hospital. You say, "We know you are not going to investigate this case straightaway but, to let you know, we have a report that is supportive. You might want to look at this case now and save yourselves some time so that, by the time we get to the letter-of-response stage, you are in a position to give a more detailed response." That has the support of the NHSLA and all the indemnity organisations for doctors. If we can get that introduced, it will reduce delay and streamline the process and, that, of course, saves costs for everybody.
Carole Ayre: I would like to make the point that I am left in absolutely no doubt my job is to make sure that, where admissions are appropriate, they are made as soon as possible. The Litigation Authority, the NHS, has no interest in a denial of liability where it is appropriate to make an admission.
Desmond Hudson: I would make two points briefly, if I may. The first is that it strikes me, if you were thinking about this from the point of view of claimants’ costs-where, clearly, the public purse may have to pay some or all of those claimants’ costs in certain types of cases-one of the consequences of the preaction protocol is that it front-loads costs. It seems to me that, within the drafting of that protocol, the desire to be sure this is a valid claim-the need to be able to demonstrate that at the outset, and for good reason-means you are incurring costs at the beginning.
The second point I would make-I think I am right in saying it was the last question you raised-relates to the question of case management by the judiciary. Certainly, it is a concern of The Law Society that the current range of options open to the judiciary to intervene in and manage cases could be used much more. It is no secret that the Law Society is very concerned and unpersuaded as to the merits of Lord Justice Jackson’s report. However, one of the things we think very important, even within the existing arrangements as the procedural rules and the law stand today, is that judges, perhaps with the need for some judicial training, could take a much more invasive role in terms of managing and incentivising good behaviour, and in costs management. That is something we think bears further urgent inquiry.
Q312 Mr Sharma: What are the main reasons for the increase in the volume and the value of claims against the NHS?
Desmond Hudson: Perhaps I might have a go at that. It is important to look at two factors when we talk about the increase in the number of claims. One can’t look at an increase in the number of claims without looking at the level of activity within the NHS. If the number of people being admitted into the NHS was falling and claims were rising, that would be very concerning. If claims were rising in proportion, let us say, to increases in activity levels, that may be less of a concern. It is my submission that the numbers we are seeing here are moving in proportion to the increased throughput or activity within the NHS. What is also worth noting, if you look at the number of incidents where harm is caused to patients and the number of complaints made, is the proportion that become claims under our present system is a fraction. In his 2010 report, the chief executive of the NHSLA was talking about it being a figure of 1% of those incidents which transferred to litigation or a claim.
As to the cost of claims, it is inevitably the case that-if I can put it this way-the inflation in damage settlements has romped ahead of RPI. That seems to be very largely driven by judicial decisions and actions as well as the costs that are taken account of.
Carole Ayre: We have made the point in our paper about the increase in activity in the NHS. The two key things, to my mind, are, first, there is a very highly developed claims market. People are very much more aware now of their ability to make complaints and claims. There are some very active claims management companies out there looking for claims as well.
Secondly, in terms of the actual value of claims, there has been significant damages inflation. A number of cases have resulted in a hike in the value of claims to keep pace with the cost of care, etcetera. All these things have conspired to bring us to where we are, but it is not necessarily a bad thing if people have claims to make.
Nicola Wainwright: That would be my point. The rise in complaints suggests more people are unhappy with the care they are receiving and, before we start looking for other possible reasons, we should be thinking about the fact that perhaps the quality of care they are receiving is not of the standard we would like it to be. To bring a clinical negligence claim you have to show that the care wasn’t reasonably competent. We are not just suggesting that the care is not perfect. That is where any analysis should start.
Although there has been a rise in damages, compensation in this country is relatively low, particularly for pain, suffering and loss of amenity. Most clients are not fully compensated even if they succeed in full in a claim because, obviously, there are reductions and they have been put to a lot of cost as a result of their injuries. They are no longer in a position, for example, to go out to work and earn money so that they can put themselves back in the same position, or they have to pay for care whereas, previously, they would not have had to.
Q313 Grahame Morris: Can I come in on that? It is quite a pejorative statement to make that the standard of care and treatment is deteriorating. On what basis would you make that assertion? How many years have you been involved? It strikes me that it is at odds with the Ipsos MORI survey of public satisfaction with the NHS and doesn’t take account of the dramatic increase in activity. Over what timeframe, in your experience, are you making the judgment that the standard of care and treatment is deteriorating?
Nicola Wainwright: My experience is only since I have been involved, but I am also coming from a lawyer’s perspective. All I can comment on is what my clients tell me and what our experts tell us. A lot of our experts, in conference, are commenting that the NHS isn’t as it was, that, as it is becoming, they don’t want to work in it and that there are lots of pressures on them from different areas; for example, the EU Working Time Directive affecting training and the lack of resources affecting staffing. All of those issues come into play. There are some statistics that suggest there is concern about the quality of care. For example, the National Patient Safety Agency, and I think the Royal College of Surgeons carried out a survey which suggested their members felt there had been a reduction in quality of care. I can’t, at this point, tell you over what time they were doing those surveys, but I am happy to check that and report back. The British Medical Association has also issued a survey. Therefore, there are some surveys, but, obviously, I don’t think anyone has sat down and said, "If we compare care in 1975 to now, what is the difference?" Lots of my evidence is anecdotal, but I am afraid lots of clients come in feeling-
Q314 Valerie Vaz: That is on the basis that you see the bad end of it rather than the good, which is the 30%.
Nicola Wainwright: Of course.
Muiris Lyons: May I make an observation? The NHS provides 3 million patient treatments a week. It employs 1.5 million people. It is a massive organisation. Inevitably, mistakes are going to be made. Most of the time it is not doctors making a really crass error but people falling between two stools, maybe on a handover from one doctor to another or one department to another. It is people falling through gaps in the system.
What we have, though, is around 10,000 claims being notified each year. Although we recognise that in the last three years there has been an increase in the number of claims, it is important to look at the perspective because we have only now reached the position we were at 10 years ago. The claims now are at broadly the same level as they were 10 years ago. They have dipped in between. Contrary to the perception of a "compensation culture" and claims being out of control, we are only back at the position we were 10 years ago.
Q315 Chris Skidmore: It is not true, then?
Muiris Lyons: It is not true.
Q316 Chris Skidmore: In terms of the costs-
Muiris Lyons: The number of claims-
Chris Skidmore: Yes, the number of claims.
Muiris Lyons: Costs have gone up.
Q317 Chris Skidmore: Costs is the crucial issue here. You have got £102 billion going to the NHS and it has now reached £650 million being sucked up by the costs of claims and legal fees. To what extent are you happy for that to rise even further to £2 billion or £3 billion? You seem to suggest, Nicola, that the compensation claim rate, in comparison with other countries, is low. Would you be happy for the £650 million figure to rise even further?
Nicola Wainwright: I can only come at this from my perspective, which is, of course, on behalf of my clients who have suffered an injury. Obviously, from my point of view, that is where it has to start. These people have been injured and they deserve redress and justice. If, unfortunately, that costs, that is the position. The alternative is to suggest that they shouldn’t be compensated despite the fact they have suffered an injury through no fault of their own. I don’t think that is satisfactory either. No, I don’t want costs to continue rising unnecessarily but, at the same time, the priority should be the patient and patient safety rather than just looking at the cost of it.
Looking at the cost in comparison to some other costs the Government incurs puts it in context. Although £800 million, obviously, is a lot of money, a lot of money is spent on a lot of other issues. This is about safety and justice.
Q318 Chris Skidmore: But it is not just the patients being compensated, is it? You are being compensated for your legal time and how much-
Nicola Wainwright: We are being paid for our legal time and not paid for all of it.
Q319 Chris Skidmore: How much do you charge per hour, for instance?
Nicola Wainwright: On what? Do you mean-
Chris Skidmore: For the cases you take up, how much are you charging per hour?
Nicola Wainwright: For some of them, we don’t get paid at all. For some of them we get paid £70 an hour-a hairdresser charges more than that-and they are probably the majority of our cases. On the others, we can claim, obviously, on a "no win, no fee" basis but we only get paid for the ones we win; that is, when we prove the NHS was negligent.
Q320 Chris Skidmore: On those cases of the "no win, no fee"-
Nicola Wainwright: -we receive a success fee to cover the cases where we didn’t succeed which was the whole process-
Q321 Chris Skidmore: -the NHSLA has suggested rates of £409 an hour.
Nicola Wainwright: They can be up to that, yes. Can I also say that comparing claimants’ rates and defendants’ rates ignores the difference between the two parties, and there is a big difference. The first is that, of course, the NHSLA bulk buys services because it has a volume of cases. It also supplies lots of its panel solicitors with other work. The defendant’s solicitors are generally paid for all of their work and at the rate they quote. Also, they are paid, probably regularly, every month, whereas, even when we are paid, it is at the end of the case, which may be three or four years down the line.
Q322 Chair: I don’t want to turn this into a fee negotiation. Could we have the other side of the story from Browne Jacobson at the same time and then perhaps not come back to the subject?
Carole Ayre: Going back to the question about the amount that is paid out in damages, I’m not sure if the Members are familiar or aware of the discount rate, which is the rate one applies when working out future losses. When I started doing clinical negligence work, in about 1997, the discount rate was about 4.5%. Because of the fall in returns on investments, that discount rate has fallen. At the moment it is 2.5% and there is currently a move to reduce that still further. That has made a very significant difference to the damages awarded to claimants. It is not just the number of claims. It is the actual value of those claims.
Q323 Rosie Cooper: The value that should be paid out is proportional to the injury caused, and the big claims are often in childbirth and whatever, so they have to be proportional. It is either right or it is wrong and it is just or it is not. I don’t particularly like the tone of this in the sense that it is about paying the appropriate amount and not just what we can get away with. I think that whole tone which is creeping in here is not helpful. If you or your family have suffered an injury, then you don’t want it to be compounded by whoever did it walking away and/or you not getting the proper recompense. I often say that the NHS will save your life but may leave you dying because it is the care bit afterwards that there are often many questions about. That is the easy bit. But when you are getting the actual saving your life bit wrong too, it is really dreadful. I am sorry, but I felt I had to say that on the record.
Carole Ayre: That is why I make the distinction between damages and costs because they are a completely different issue. Again, when I started in 1997, a birth injury was probably £1.5 million and it is now £4 million, £5 million or £6 million. That is damages. That is nothing to do with Leigh Day’s costs or our costs. I can see your point.
Rosie Cooper: Absolutely. I do get that, but there was a tone creeping in that, with your costs, you have to do your best for the right price. Nobody should not get justice because there is a row about £70 or £100. It is absolute nonsense.
Chair: You have probably covered that. I suspect everyone on the Committee would agree with that proposition and I suspect all the witnesses would as well.
Q324 Dr Wollaston: Can I return to the area of claims management companies? We have already heard that only about 1% of injuries result in a legal action. We have heard from Ms Wainwright that there is an argument for saying people should be pursuing claims, but, of course, the impact on the NHS, if 100% of people went down that route, would be devastating. We also know that the Legal Services Board is consulting on whether these referral fees should be restricted or whether we should regulate the inducements. Could you give us your views on those aspects?
Desmond Hudson: I will start on behalf of The Law Society. Claims management companies are almost entirely dependent on the payment and receipt of referral fees: I originate a bundle of cases because I advertise on daytime TV and I sell them to solicitors. Or, I am an insurance company, I provide legal expenses insurance as part of my policy and I then run an online auction to sell those cases to solicitors.
We are suggesting that referral fees are not in the public interest, that they are adding an unnecessary layer of cost and that the claims management companies provide little, if any, positive service. I say "little, if any" because I do think there is an important and complex issue here about public legal education. If I may, perhaps I could use the example of the current furore about PPI. There is an interesting question, it seems to me, about whether, if I am-
Q325 Dr Wollaston: Could you clarify for people what PPI is?
Desmond Hudson: It is payment protection insurance. You will remember that the banks have said they will not pursue their legal argument. It was said, in many instances, that banks have mis-sold payment protection insurance which is designed to pay my mortgage if I lost my job or, let us say, I was injured. Is it reasonable for a claims management company’s costs to be borne, in that example, by the bank, or a claims management company’s costs in clinical negligence to be borne by the public purse? Is there anything that says that is justifiable?
The public legal education argument that suggests making sure people know of their rights and their ability to bring forward their rights, we think, is appropriate. The question is whether that should then be a business that generates costs: I aggregate, originate claims and sell them to other people-lawyers-who have to recover that cost somehow. In this example they are going to be recovering it from the National Health Service and in PPI and the banks they are going to recover it from the banks. We are suggesting there may be alternative ways in which that public legal education process could be undertaken. It might be done, for example, by the legal profession-The Law Society or the Bar Council-acting in a way that perhaps avoids the excesses and the unwholesome nature of some of the very strident marketing and cold calling that we are seeing claims management companies undertaking. There are significant improvements that we could make as a society in intervening and clamping down against this practice and, by looking at public legal education in a more measured way, we could ensure that our fellow citizens are not disadvantaged when they should be aware of a right to make a claim.
Carole Ayre: My view would be that they don’t add any value to the process at all. I noted in the Law Gazette the other week a survey had been undertaken indicating that over 50% of the adult population had been cold called by a claims management company. I am not sure it is the role of claims management companies to educate the public about their rights, but I suspect the genie is out of the bottle.
Q326 Dr Wollaston: How would you get rid of them? Would you do it by preventing them charging these referral fees and preventing them paying inducements?
Desmond Hudson: If I could offer an answer to that, the Legal Services Board could introduce a rule across the entire legal services market that prevented the payment or receipt of referral fees in relation to legal services.
Dr Wollaston: That would, effectively, put them out of business. Thank you.
Q327 Chair: It would, but presumably the argument they would make is that, however good your public legal education, they secure access to legal redress for precisely the cases that Rosie was talking about-people who have suffered an injury and are entitled to compensation.
Desmond Hudson: Yes, that’s right, which is why we slightly differ. I can see some benefit in what claims management companies are doing, but I would submit that there are more appropriate ways we could deliver that utility.
Valerie Vaz: That’s a job for the Law Society and good lawyers.
Desmond Hudson: Yes.
Q328 Chair: Is there any evidence of the cost-not of the additional compensation paid as a result of their activity, because that, on the test we have just established, is legitimate-of the referral fees themselves and, therefore, the cost of the additional access?
Muiris Lyons: There is no extra cost to the NHS because, if referral fees are paid, they are borne by the solicitor who pays them out of the fees they would recover for the work. Solicitors have a choice. They can either pay for the marketing and advertising themselves or they can sub-contract it to someone else. A lot of them do that through claims management companies. The MoJ say there are now 2,500 claims management companies out there acting as middle men. At my organisation, APIL, we have never seen a role for them. If you need a plumber you don’t ring up a plumber management corporation to have your case referred on. You can ring a lawyer direct. We accept that there are roles for education and awareness and promoting people’s right to access to justice-that is very important-but there are issues about taste, decency and the scope and nature of advertising that do need to be addressed.
Carole Ayre: And also about the ability of the firm that buys the claim to properly deal with the case. I don’t know whether firms like Leigh Day & Co use referral companies-they are, clearly, very skilled in dealing with clinical negligence so the claimant is not disadvantaged by that-but we do deal with some claimant firms who, frankly, don’t know one end of a clinical negligence claim from another. We pay them very high fees, yet they are not able to deal with the claim effectively and rely heavily on counsel.
Q329 Chair: Independent of the claims management company issue, if an injured party is being represented by an incompetent solicitor, that is an issue for the Law Society, isn’t it?
Carole Ayre: You can’t call them incompetent. It is just that-
Chair: If I may say so, you just did.
Carole Ayre: I did, yes.
Muiris Lyons: You mean less competent, maybe.
Carole Ayre: Less competent, yes. They are unsure how to proceed, they can’t value the claims themselves and they are unsure about the liability issues. Therefore, they rely heavily on counsel.
Desmond Hudson: That is not necessarily a sin, is it? It is a breach of the rules of professional conduct for a solicitor to take on a case that they are not competent to handle.
Carole Ayre: No, but it is unnecessarily costly.
Muiris Lyons: The key point is, isn’t it, that referral fees lead to cases being referred to the highest bidder, whereas we would much rather see cases going through accreditation schemes which show you are getting a good lawyer who knows what they are doing?
Q330 Rosie Cooper: The Law Society, accreditation schemes and legal aid-that’s a mess I don’t think we want to go to, do we?
Desmond Hudson: I’m not sure I understand the basis of your point. I would say that the accreditation schemes in the Legal Services Commission, which I was also involved in, work comparatively well.
Rosie Cooper: I would probably disagree.
Desmond Hudson: Perhaps we should discuss that.
Q331 David Tredinnick: If the claims management companies are performing unsatisfactorily, and you say they are not professional, surely there is a problem with the regulations as they are at the moment and that needs to be addressed. Never mind whether we remove their ability to charge fees-that is a totally separate issue-we shouldn’t have any organisation operating that is incompetent. I would like to ask for your comments on whether or not you think claims management companies have adequate regulation as it stands, please.
Muiris Lyons: Des is probably more of an expert on the regulations, but my understanding is that, whereas solicitors have quite tight professional regulation, claims management companies come under the insurance umbrella. Therefore, it is light touch regulation. It is principle-based and it is about making sure you don’t get things terribly wrong as opposed to keeping you on the straight and narrow. It is a different way of regulating.
Desmond Hudson: Claims management companies are regulated in this country by the Ministry of Justice directly. The Law Society’s view is that the regulation of claims management companies could be significantly improved. That said, we have to recognise the complexity of the task that the MoJ faces and the legal profession, including the solicitors, have to recognise that our members are buying cases and paying referral fees. If you look at, for example, the way insurance companies, who do not necessarily use claims management companies, would run an online auction, let us say, for all the cases involving motor cyclists in Greater London, I might easily pay £900 a case for that. We are saying, in that instance, we believe there should be an obligation for explicit disclosure that is happening so that the consumers of insurance policies can make informed choices, and perhaps the wider community can take a view as to whether we think this is appropriate business practice.
If I go back to claims management companies, because solicitors are making these payments and because we try to enforce our rules, which are quite tough, I don’t think our own enforcement is ideal and some solicitors perhaps make mistakes or break the rules in the terms under which the payments are made. It would be convenient for me to blame the MoJ and say they were badly regulating claims management companies, and I think they could do better, but there is a need for improvements and changes more widely than that. If I may, I repeat my basic submission that I do not believe claims management companies are acting in the public interest.
Q332 Grahame Morris: Can we move on to some of the changes, in particular, in relation to success fees? The Committee has been advised that the Government are proposing these will no longer be recoverable from the NHS when a claim is successful. I would like to ask Mr Hudson from The Law Society what the implications of that are likely to be and invite comment from the others. Also, could you touch on what the impact would be of the proposed changes in the system of legal aid where it will no longer be available to claimants in clinical negligence cases and CFAs will have to be used instead? Could Nicola, in particular, give us her views on that? I would be interested in your views on those-and I know we haven’t got a lot of time.
Desmond Hudson: The consequence of what is proposed, removing CFAs, coupled with what is also proposed by the Government in terms of the civil legal aid system, will mean that the courts will only be used by the beneficiaries of charity, the very rich and powerful, or someone who has a case that will pass the economic viability of being funded by the lawyer. That is likely to mean that we will continue to see rearend shunts and whiplash cases being brought because they will be cheap and easy cases to finance speculatively by a solicitor. The very difficult, complex cases of causation and liability will be unlikely to be brought. The Law Society asserts there is a very significant danger that we are going to see a generational change in the concept of access to justice in this country if these sorts of things go through. CFAs-conditional fee agreements-are the mechanism that was introduced by previous Governments to finance the bringing of cases for people who were of moderate or average means as legal aid retreated. The CFA system, conditional fee agreement, works on the basis that I can recover my success fee against someone I successfully sue. We have decided that we will pass that cost to the NHS and to insurance companies rather than carry that cost through a legal aid system. As I say, not only do I think we will we see a very marked change in access to justice, but we will also see rejoicing in the boardrooms of insurance companies. It will be a great day for insurance companies if these changes go through.
Nicola Wainwright: From a claimant point of view, I would agree. I don’t think it can be emphasised enough that access to justice will be denied for probably the majority. With the combination of the change to CFAs and the removal of legal aid, both lowincome and middleincome earners will find it very difficult, if not impossible, to obtain legal advice and assistance. Their only option will probably be to become litigants in person, with which, obviously, there is a complete inequality of arms, or rely on advice centres or similar. The number of solicitors doing clinical negligence work will diminish because fewer will be able to make it work and make it profitable. Solicitors will not be able to afford to bring cases on a "no win, no fee" basis when the success fee doesn’t compensate them for those cases they lose. Cash flow is a real issue for some firms, with the removal of legal aid. At least legal aid gives us some money as we go along, at a very reduced rate. That means that, throughout the life of cases, we will not be paid. There is no form of payment that pays us as the case goes along once legal aid goes. The effect cannot be underestimated.
Muiris Lyons: Lord Justice Jackson himself wrote to the MoJ after getting an economist to help cost the proposals and he said that, under his proposal, 61% of claimants would be better off and 39% would be worse off. Those who are better off are, as Des says, those who have relatively simple road traffic accident claims. The whole purpose of the report was to try to control legal costs and it has missed the fact that those cases are now in a fixedcost, fasttrack streamlined process anyway. That problem has been resolved. The 39% of claimants who are going to be worse off under those proposals are the ones with difficult cases, primarily clinical negligence cases, which are very difficult to run. That is what Lord Justice Jackson says about it. The Ministry of Justice themselves, in their impact assessments, say they expect to see fewer claims being brought after these proposals. They couldn’t be clearer than that in terms of its implications for access to justice.
Desmond Hudson: I think MPs’ surgeries are going to be busy.
Q333 Chair: Browne Jacobson, in their evidence to the Committee, said that conditional fee arrangements were a gravy train.
Carole Ayre: Yes.
Q334 Chair: I wonder if you could just explore that with us because it has not sounded like a gravy train for the last couple of minutes.
Carole Ayre: No. First, claimant lawyers are permitted by the courts to recover a much higher hourly rate than defendant lawyers, not because defendant lawyers are particularly philanthropic towards their clients but because the market has driven down the amount they are prepared to pay us. Secondly, a lot of claimant lawyers-not all of them, but quite a lot-would have it that clinical negligence work is so complex that it justifies an uplift in the base rate. Thirdly, you apply the success fee, which can be up to 100% but is probably more like 50% or 60% on average. I don’t have any stats, but that is probably more or less where it is.
We arrive at a situation where the claimant lawyer has the opportunity to make a several hundred per cent uplift in his profit margin-not 100%, but several hundred per cent uplift in his profit margin-without any constraint over the way in which the work is done, because the client has no interest in the cost, there is no insurer-it will not be BTE insured-keeping an eye on how the work is done and there is no legal aid body keeping an eye on it. Therefore, there is no moderating influence on the way in which the work is done. They don’t need to worry about that when they are litigating a claim.
Q335 Chair: Apart, presumably, from their judgment of the likelihood of recovery of the success fee.
Carole Ayre: We hardly ever see a claim brought which fails-only 2% of cases. I know that a lot of cases are looked at before-
Muiris Lyons: I am sorry, but that isn’t right, is it?
Carole Ayre: Let me finish-
Muiris Lyons: The NHS’ own statistics show that 40% of claimants discontinue their cases.
Carole Ayre: Let me finish what I was saying. When I see cases which are litigated, they are not risky cases. I appreciate, understand and accept that a lot of cases are looked at and letters of claim are worked up and sent before they ever get to us. I understand that. But I do think the balance has tipped so that there is an overcompensation which is disproportionate to the risk. I am not saying it is improper, illegal or anything like that. The point I am making is that where you have a situation in which-and we have got various examples-there is a claim worth £5,000 and you receive a bill for £70,000, an objective bystander, I would suggest, would be bound to think that something has gone a bit awry and that that was not intended.
Q336 Chair: Your case, in a nutshell, is that the absence of regulation, either by the insurance company or by the legal aid system, is leading to claims being taken up that are being handled expensively, ultimately at the taxpayer’s expense.
Carole Ayre: Yes, I think so. I am not suggesting this is deliberate. It is just that there is no pressure.
Q337 Chair: It is a market. If I can develop your argument one stage further, we have heard that these claims management companies have grown up to handle access to cases like that, which suggests that they are quite profitable.
Carole Ayre: Yes. They are very profitable, yes.
Q338 Valerie Vaz: I am getting confused. I have sat as a deputy district judge and I have scrutinised bills. There must be some sort of mechanism for doing that and judges have knocked fees off in a huge way. Judges can look at the complexity of the case and say, "This requires an uplift." Does that not happen in these cases?
Muiris Lyons: It does.
Desmond Hudson: It does and it is open to the defendant-Forgive me, after you.
Nicola Wainwright: Every claimant bill is subject to detailed assessment, which the client can ask the judge to assess and the defendant can ask the judge to assess.
Carole Ayre: Every claimant bill is not subject to detailed assessment because not every claimant bill is taken to detailed assessment.
Valerie Vaz: If you want to, you can.
Muiris Lyons: You can if you want to. You have the opportunity.
Carole Ayre: If they were taken to detailed assessment, the courts would never be open for any other matter.
Q339 Rosie Cooper: Why don’t you challenge-
Carole Ayre: We do challenge things.
Rosie Cooper: If you believe that, why don’t you challenge each and every one? Until you challenge each and every one, this practice won’t stop. If that is what it takes, then you should be doing it.
Desmond Hudson: Assuming this practice exists in the way you have heard-and I have to say, with great respect to Carole, I would differ here-the very nature of a conditional fee agreement with a success fee is designed to say, "In the case I win I get more than my standard costs because I am going to lose some." As we have heard, from the NHSLA’s own figures, of the clinical negligence claims brought in 200910, 40% were closed without a payment being made. Inevitably, if we are going to say, "You, the lawyer, must fund this and you are not allowed to take your costs from the client’s damages" then I have to charge more in the cases that I win because I am going to lose some.
It is absolutely the case that if I bring a case which goes before the courts and the defendant is unhappy with the way in which I am seeking my success fee or the way in which I have conducted the case, they can do one of two things. They can challenge that before the courts or they could report malpractice by solicitors to the Law Society. There is an obligation on every solicitor, every one of us here, to do that where we find someone has acted improperly. If it is the case-assume that this is happening all over the place-that should be happening, if precedent cost cases were established by the courts the rest of the profession would have to fall into line.
Can I make one final point? If I am financing the case at my personal risk-as, for example, Leigh Day have done in some instances, because that is how the CFA system works-what advantage is there to me in ramping up costs that I am paying for? I am taking the risk of that. I have to balance that risk in terms of my firm’s balance sheet. There is every incentive for me to act prudently, never mind the ability to be reviewed before the courts and be subject to the code of practice that applies to every individual solicitor.
Carole Ayre: Can I make the point that I did not accuse claimant lawyers of indulging in malpractice? The point I was making is that there is no downward pressure on the way in which they conduct their litigation. The court rates reflect the market rate. There is no point in taking a case to detailed assessment if the district judge is going to reflect the market rate and take the view, "This seems reasonable because this is what other claimant lawyers do in their cases." It is very difficult, and it is not as straightforward as it first appears, to challenge every claimant’s bill. The district judge may not agree with you. If you are faced with a CFA, a success fee of 100% and the cost draftsman employed by the claimant’s solicitor is also on a CFA, it is a very expensive business to take a case to detailed assessment. You could be adding £20,000 or £30,000 to the bill in a big case if you don’t get your offer right.
Q340 Chair: Is there any evidence that can be produced of the legal fees that have been paid over a period of years associated with these injury cases by the NHS? We can see what the cost of damages is. Can we see what the cost is that the NHS is paying through the CFA system and compare that with what was being paid out of public funds in the previous system?
Muiris Lyons: The NHSLA produce an annual report each year which has a number of graphs, and those were provided to Lord Justice Jackson. One of them-and I can make sure the Committee receives it-shows costs in publiclyfunded cases, costs in beforetheevent insurance cases and costs in CFA cases set against the damages that are paid out. It will show you exactly the impact of the different mechanisms of funding in proportion to the levels of damages that are paid out.
Q341 Chair: Those are the key variables plus, of course, the principle of access to justice as well.
Muiris Lyons: Yes.
Desmond Hudson: Also, if I may say, very briefly, the decision we have taken hitherto that it would not be appropriate to require the claimant to pay costs from their damages. If we looked at, for example, a North American model, that would be very different. There, it seems to me, there is a very important public policy decision for Parliament to say, "What do we want to do?" At the moment, because of the way the CFA system works with the reducing of legal aid, there are costs having to be paid by the defendants-by the NHS. One other option would be to say, "We no longer subscribe to the importance of a wronged individual retaining 100% of their damages."
There is a choice that has to be made, but at some point reasonable costs-and costs should be reasonable-have to be paid by somebody. What we are looking at is trying to find the appropriate choice as to where that risk or burden lies.
Q342 Chair: This is an important issue that has evolved in the last 10 minutes in this conversation. The Committee would be interested to see the evidence that you referred to produced by the Litigation Authority. We would also be interested to see the comments, both of Browne Jacobson and of Leigh Day, on the public policy implications of these arguments from the two different perspectives.
Nicola Wainwright: I would like to be able to comment on what the representative from the defendants say. Whether you want me to do that now or in writing, I would rather not let some of those comments stand as accepted. I am happy to do it in writing, but I could be quick.
Q343 Chair: I am conscious that we will have a Minister waiting outside in 10 minutes and that there is some other ground we want to cover, but would you like to respond briefly?
Nicola Wainwright: Yes, very briefly. There seems to be a misconception. First, CFAs were designed that the success fee on one case pays for those you don’t win. When the defendant says that there are not any cases we don’t win, that is because we risk assess very well. Therefore, the cases we take on and which incur costs for the NHSLA are ones we are likely to win. Those costs can be controlled by, if anyone, the NHSLA settling them earlier.
Secondly, we are constrained by aftertheevent insurance. We would never advise a client to go ahead on a CFA without insurance. We have to show reasonable prospects of success for them. They keep an eye on what we are doing. Above and beyond that, we have a duty to do the best for our clients. All solicitors, I believe, are doing that. Why would we put somebody who has already been injured, lost money and lost trust in professionals through a process for the sake of it, in addition to which we then wouldn’t get paid for that work? It doesn’t make any sense. The fact is we investigate a lot of cases which we don’t take on because we properly risk assess. That isn’t a failing on our part. That is us doing our job and it helps the NHSLA because they do not have to deal with cases that aren’t likely to succeed.
Q344 Chair: I don’t want to prolong it, but the argument that Carole Ayre would have been making is that, with some of the cases that you did take to success, it is, in principle, possible you made a judgment that you could get them to success but only at the expense of putting more public money, ultimately, behind that case than the legal aid process or an insurer might have been prepared to commit.
Nicola Wainwright: I don’t necessarily think so. I have to say again-
Q345 Chair: But you acknowledge that it is a possibility.
Nicola Wainwright: Theoretically, but I don’t think, practically, that is how it works.
Q346 Chair: The best way of establishing whether it has happened is some of the evidence that the Litigation Authority has generated.
Muiris Lyons: It is. It is worth observing that, at the moment, the Government proposes to remove success fees altogether being paid by the NHSLA, whereas, as an organisation, we have called for success fees to be fixed. It is not about the solicitor picking a number out of the air, as Carole seems to think we do, and then trying to justify that. We will be saying that if the NHSLA admit liability, say, within the first four months, then they don’t pay any success fee at all. They get the benefit of getting their response right and getting their risk assessments right. But if they pick a fight, deny liability and are subsequently shown to have got their risk assessment wrong, then they should be paying the success fee. Without success fees, we won’t be able to provide the access to justice to clients who otherwise won’t be able to afford to bring these cases themselves, particularly in the absence of legal aid.
Q347 Chair: We are getting into a competition for the last word now.
Carole Ayre: I will be very brief. The NHSLA do not go round picking fights for the sake of it. All I am saying, in essence, is that the amount we are paying out in success fees is too high and is disproportionate to the value of the claims. That is all.
Q348 Rosie Cooper: I have a quick question. How inhibited are you by the delay with medical reports and things like that? Is that the cause of some of that delay?
Carole Ayre: Sometimes it is. I am not quite sure what delay we are talking about here. Are we talking about delay from the time complaint is made or getting to the end of the case?
Q349 Rosie Cooper: Does the process of gathering medical, professional or expert witness reports delay you very much?
Carole Ayre: It can do. If you would like me to tell you what our average shelf-life figures are in my office, I can tell you.
Q350 Chair: Time is short. The next issue I want to cover is tangentially relevant to that, which is the question of the extent to which there should be a duty of candour on NHS operators when they are subject to personal injury claims and, indeed, other complaints. Do you believe that they should be subject to a duty of candour and would that lead to recognition of liability quicker than some of the current system, which sometimes is felt to be a system that relies on the applicant having to prove their case first?
Carole Ayre: They are subject to a duty of candour pursuant to the GMC requirements in any event. I suppose your question is: would a statutory duty of candour make any difference?
Q351 Chair: With the consequence that they would be subject to criticism if it could be shown that they had not complied with it in a timely way.
Carole Ayre: I have thought about that question and I am not too sure about it. When you ask a consultant whether he thinks he did anything wrong, he is not necessarily going to say yes, because he wouldn’t have done it if he thought he had done something wrong in the first place.
Q352 Chair: That is not the same thing, though, is it? We all can have second thoughts.
Carole Ayre: No. What it-
Valerie Vaz: No, look at the Bristol hearts.
Carole Ayre: Yes.
Q353 Valerie Vaz: Also, in judicial review you do have a duty of candour, so if you front-load it at that stage, you are obliged to put out the facts.
Carole Ayre: It is very difficult do judge whether or not, on a daytoday basis, it would impact upon the clinician’s approach. I don’t believe they go round trying to conceal things or not doing-
Q354 Valerie Vaz: That is the point. If it is just an accident you can deal with it and someone should be properly compensated-if it is an accident-rather than drag it out and say, "No, no, no. I didn’t do it."
Carole Ayre: I am ambivalent about it.
Q355 Chair: I am reluctant to believe that in this imperfect world the thought never crosses the mind of the Litigation Authority, "Let them prove it."
Muiris Lyons: They are dutybound to do that. They don’t pay out unless-
Q356 Chair: Hang on a second. Dutybound to-
Muiris Lyons: The burden of proof is on the claimant. You have to advance a case and show you have got a case before they will admit liability.
Q357 Chair: That is not the same thing at all as a duty of candour, is it?
Desmond Hudson: No.
Muiris Lyons: No, it isn’t. Duty of candour could go some way towards helping change the culture within the NHS, but I don’t think it is the answer to these issues we have discussed this morning.
Carole Ayre: If I interview a clinician, with very rare exceptions, I get a very straightforward response. I may challenge what the clinician says.
Nicola Wainwright: But it may be the patient didn’t get that straightforward response when they raised it. Maybe what is needed is a culture change so that patients who complain or are unhappy are not seen as whinging and to be, if you like, fobbed off with whatever information is possible, but, instead, there is an attitude that they should be taken seriously, dealt with sensitively and that their complaints can lead to an improvement in care. That is where it may be helpful, but without the culture change, even making it a statutory duty may not make much difference.
Carole Ayre: I agree with that.
Q358 Valerie Vaz: What about the nofault compensation scheme? Scotland may be running some things. Is that something you have thought about or have views on?
Nicola Wainwright: My views are that, if combined with a proper form of redress for a client, i.e. delivering to them what most of them really want, an apology, accountability and explanation, it sounds ideal. But I think, financially, it is not possible to properly compensate absolutely everyone who can show they suffered a medical injury. I don’t know much detail about the Scottish idea, but obviously Scotland is a much smaller country and their volume and value of claims is lower. As to the figures, I understand the Chief Medical Officer here thought there would be an 80% increase in claims. The Scottish proposal suggests there will be a 20% increase, and it is on that basis they are suggesting there will not be a significant increase in costs. I think in this country there would be a significant increase and, not only that, people would be undercompensated.
Muiris Lyons: The National Patient Safety Agency’s latest figures suggest 1.3 million adverse incidents in the NHS a year, and that is significantly underreported. When you set that against perhaps 10,000 claims being brought, you can see the size of the potential problem. It sounds fantastic in theory, but you have problems about the scale of the exercise that would be involved, about whether everyone would get full and fair compensation or whether it would be some tokenbased tariff system. Then you have issues about how you establish cause. It is all very well saying, "We accept responsibility for the error," but you have to go on and show what damage was caused as a result of that error. It is always the most difficult part in clinical negligence cases and that doesn’t go away with a nofault scheme.
Carole Ayre: The numbers in the Scottish example are so small that I don’t think one could even start to rely on that as being applicable to this country. Claimants would be significantly undercompensated if there was such a scheme. While I have the floor, I agree that legal aid should be retained for clinical negligence.
Q359 Chair: Does anybody have any idea how-even if the numbers are smaller, the percentages are the same-80% in England is equivalent to 20% in Scotland?
Desmond Hudson: I have not seen any rationalisation of those figures. My sense of the available work suggests to me that we don’t know. It would, therefore, in public policy terms, be a very courageous decision for a health Minister to say, "I’m going to introduce this." I, personally, would not want to be the health Minister going to tell the Treasury that. My sense is that there will be a very significant increase in cost.
Chair: You have just offered a piece of free legal advice to a Minister.
Desmond Hudson: I shall be in trouble for doing that when I get back. If I may, it really is important to reiterate the point that all of my colleagues have said. One of the consequences of these sorts of schemes is likely to be a significant undercompensating or a significant change of current compensation levels for the individual who has been wronged.
Valerie Vaz: We have got you here, but we are also looking at the other side, and how the information relating to this-the bad care that seems to be taking place, apparently, or an increase of it-is fed back to the different organisations and we think that may be another part of the jigsaw. It is not that we are looking at you and attacking what you do. There are other aspects to it.
Thank you very much. It has been an interesting and useful session.
Examination of Witnesses
Witnesses: Rt Hon Simon Burns MP, Minister of State, Department of Health, and Chris Bostock, Head of User Experience, Department of Health, gave evidence.
Q360 Chair: Minister and Mr Bostock, you are both very welcome. You will, I am sure, be aware that we have been doing an inquiry and carried out a number of evidence sessions on the way the NHS handles complaints and litigation, and I know you sat in at the back at the end of the evidence session we just had.
I would like, if I may, to begin this session by taking us away from the litigation process and back to the mainstream handling of complaints in the Health Service. This has been the subject of quite a lot of organisational change over the years. Can I start, Minister, by asking you what your assessment is, currently, of the effectiveness with which the NHS handles complaints? If a patient feels they have not received the care that they should have received, do you think the system handles that complaint effectively and sensitively at the moment, or do you think there are ways in which it could be improved and, if so, how?
Mr Burns: First of all, thank you very much indeed for inviting me here today. I am the only person who has both given evidence to the Health Select Committee and spent five years taking evidence as a Member of the Health Select Committee. It is great to be back-I think.
Chair: So far.
Mr Burns: Chairman, you raise a very important point. It is important that we have an effective, efficient system of dealing with complaints by individual members of the public when they feel that they have not had the service to which they are entitled. As you will be aware, the complaints system was streamlined back in April 2009 when it went from, in effect, a threetier system to a twotier system, getting rid of the Healthcare Commission.
The anecdotal evidence-and I use that word for a specific reason-seems to be that the system is, by and large, meeting the requirements of members of the public and patients but I cannot give you a more definitive answer at this point because, as you will be aware, we gathered the information, after the first year, in April last year. A year’s evidence is not sufficient enough to be able to draw any conclusions as to exactly where the strengths are or where any possible improvements may be needed. We are going to have to wait a little time till we have some more evidence from how the system has been working under the new regime to be able to draw definitive answers as to whether it is working to the level at which we would expect a complaints system to operate.
Q361 Chair: We are obviously going to move on to talk about the impact of all the current planned changes in the Health Service on complaints handling, but the Committee feels it would be sensible, first, to understand where we start from in order to understand whether we have a problem to solve. Some of the evidence that we have heard would suggest the need for improved performance is a little more urgent: there is a sense, on the part of patients, when a complaint is handed in to an NHS provider that the first instinct of the provider is to be defensive and explain why what happened was okay, that there isn’t a culture of immediately being selfinquiring and looking to see why the patient might have concluded the care they had received was inadequate and that it is too difficult to find your way, as a patient, in what would be an unfamiliar process, to where you should be if you are going to have your complaint properly analysed and find an advocate for your case-if that is what is required to see the case progressed. Do you recognise that description?
Mr Burns: Yes. All of us, as constituency MPs, will have some dealings with constituents-patients-who have contacted us because they have a complaint against their local hospital and, either through a lack of knowledge or other reasons, have come to their MP rather than gone, first of all, to the complaints procedures. You get a flavour, from some of the letters that one receives, as to what those individual patients think. They also sometimes come to us if they are not satisfied.
Certainly from a constituency MP point of view, where there is an area for greater improvement is that a lot of patients don’t realise, when they use the first step, which is trying to resolve a complaint and a problem locally, if they are not satisfied, that they can, of course, go to the Health Service Ombudsman. Too many, I suspect, are unaware, for a variety of reasons, of the fact that they do have that option. Also, again from being a constituency MP rather than a Minister, there can sometimes be frustration at the length of time it might take to investigate and come to a conclusion on a complaint that has been made at a local level. Certainly there, there may well be grounds for improvement, if there is sufficient evidence that is not simply anecdotal evidence which has been given to individual MPs as part of their service but is a more widespread problem across the board.
Q362 Valerie Vaz: We heard evidence that a lot of people do take that route, to go to the Ombudsman, but she-or whoever it will be in the future-has a very narrow term of reference. Therefore, she doesn’t and can’t always investigate cases that people want to bring forward. We did hear in evidence that there is this disparity of information as to where people can go. That seems to be an issue, and sometimes they take six years to resolve complaints. Do you accept that something needs to be done about the whole system? I think you mentioned yesterday, anyway, that costs are rising in terms of complaints and litigation.
Mr Burns: I certainly do in so far as it is important that the Health Service is responsive to the concerns and the dissatisfaction that patients may have with the service, or the lack of service they perceive they have received, or if mistakes have been made, or whatever. It has to be responsive. Of course, it should be responsive in a way that is relevant, gets to the bottom of the problem and comes up with the right answers, and that it is done in a reasonable timescale because that can become extremely frustrating for the complainant.
I also think it is right to have a twotier system, as brought in in April 2009, rather than a threetier system. Again, with the Ombudsman-they had just under 16,000 complaints for the last year that figures were available-I accept that they too, notwithstanding the workload, need to be swifter in the way in which they resolve conflicts or complaints. I confess I have not seen the example that you give of a sixyear time scale and I don’t know the background to that. If that is the case, it would seem, on the face of it, to be an inordinate amount of time to reach a conclusion on someone’s complaint. From the figures I have seen, the average time is about a year, which also seems quite a long period of time, particularly if you are the person who has made the complaint.
Q363 Valerie Vaz: What happens to all that information, in terms of the cases that have come up and the types of complaints that have been made in relation to the service in the NHS? Does that information get disseminated out to foundation trusts and various other places?
Mr Burns: No. What we are proposing-
Valerie Vaz: How do we learn the lessons?
Mr Burns: What we are proposing through the Health and Social Care Bill is a greater sharing of that information. The more information one has, the more one can see what is going on across the board and the more one can make changes that meet a situation. You can gain information that helps you in the way in which you are going to take decisions. Also, it could, potentially, show where there may be particular problems. If you are getting a disproportionate amount of complaints in one area or against one provider, that might, in certain circumstances, ring alarm bells where closer investigation needs to be taken.
Q364 Valerie Vaz: But we are pausing at the minute. How is that information getting back now? What is the system now?
Mr Burns: The system is not as extensive as we hope it will be under the Bill. As you say, we are pausing. In addition, which is affected by the pause, we have had the consultation on the Information Revolution proposals. That was concluded in late January of this year. We have had, off the top of my head, about 750 responses. We are considering those responses at the moment and have decided that we will not be publishing the responses and our reaction to those responses during the listening process and the pause because that would be inappropriate. We will seek to publish it and the way that we believe we should go forward after that has been concluded and we have moved on.
Q365 Chair: I had promised the floor to David, but you said it would be inappropriate to publish and I wondered why.
Mr Burns: It is because we are in a listening mode and in a pause. Of course, the listening mode is about all our proposals flowing from the White Paper and we do not want to be seen, because it is a genuine listening exercise, coming to any conclusions and decisions beforehand. Also, because information is part of the modernisation of the NHS, at this stage, during that listening mode, it is wiser to postpone publication till afterwards. People may be-and certainly, reading the papers, you would anticipate that most people are going to be-focusing on other areas of the modernisation programme in their responses, but there may well be responses from people about information and how you empower patients. If we were to publish our responses during that process, people might say we are not listening in the way that we are and that we are prejudging things.
Q366 David Tredinnick: Minister, I want to take you back, if I may, to look at the problems of the Mid Staffordshire NHS Trust, which seems a pretty good example of all the things that can go wrong. How good do you think the current system is at identifying systemic failures in providers, please?
Mr Burns: Mr Tredinnick, I don’t want to be unhelpful, but I would like to explain and I hope you will bear with me. What happened at Mid Staffordshire, as we all know and agree, was absolutely dreadful and unacceptable. As you are aware, the first Francis Inquiry, and the report that was published following that, identified inadequacies around complaints handling, notably a concentration on process rather than substance. and a lack of timely remedial action. That was looking at what went wrong and the report was published with recommendations.
Following the Secretary of State’s setting up the second Francis Inquiry last year, currently it is looking at how and why things went wrong. Clearly, an important part of that is to do with complaints, whistleblowing, the way that staff were treated and the climate within the hospital. Given that that Inquiry is still sitting, it would not be the right thing for me, as a Minister, to start trying to second-guess or pontificate on what may or may not have been the problem. We should wait until Francis publishes his report, which is hopefully going to be later this year.
Q367 David Tredinnick: I understand that and you have already alluded to some of the changes that have been made-the simplification in the complaints structure. But I would like to talk about what individuals and families have said to us as a Committee, either orally or in written evidence. They have said that, after a serious adverse event like that, it is often a very long journey, going through endless different procedures through the NHS complaints system. What do you think needs to be done to ensure that adverse health care events will not be compounded by poor complaint handling in the NHS, notwithstanding the fact that you are in a consultation period and that there are pauses and inquiries? Could you open up a little and give us a view?
Mr Burns: Notwithstanding that I am not talking in the context of Mid Staffordshire and what may be going on in the Francis Inquiry at the moment, the crucial things are as follows: you have an effective complaints system that people have confidence in and that looks at things swiftly to reach resolution; that you have a culture and an atmosphere within a hospital where people working there feel confident that they are able to raise any concerns without fear that they might adversely affect their employment prospects or their position within that organisation; and that the decisions taken judging the complaints are as relevant, as accurate and as fair as possible. Obviously, if an individual still has concerns and feels that the complaints procedure has not dealt fairly or adequately with their complaint, they will have the option to go to the Health Service Ombudsman.
Q368 David Tredinnick: The last point is, under the current proposals in the Health Bill-paused, as it were-the NHS Commissioning Board will provide an alternative to GPs and primary care trusts taking forward complaints. Do you think that a centralised body can act effectively for complaints at GP level, please?
Mr Burns: It depends on the commissioning body as to who exactly is going to be responsible. In some cases it will be the National Commissioning Board and in some cases it will be the GP consortia themselves. I think the system that is going to be put in place, transferring that responsibility to those organisations, is the right way forward within the whole ethos of the modernisation programme, which is to localise the daytoday running of the National Health Service rather than the micro managementfromWhitehall system that we have in place-or we had in place.
David Tredinnick: Through you, Chair, I am sure colleagues will want to come in on this because I am not sure that I am absolutely clear, or that the Committee is clear-
Chair: A number of them do wish to come in.
David Tredinnick: -about whether all this is going to be sucked up or whether it is in fact going to be dealt with at a local level. I rest.
Q369 Rosie Cooper: Minister, you spoke at length, a couple of minutes ago, about much more information being available for patients and the system generally. But I have to say that the evidence we have received so far would be at odds with that in the sense that FT representatives were very clear that they are not required to send information in about complaints, and they don’t, and they are unwilling to do that. I have struggled to find out how much FT chairmen individually are paid. If you can’t get that kind of information out of the system, then I don’t understand, Minister, how you can be so sure that that information will be there in its entirety, especially about complaints, which will enable patients and practitioners to make their choices properly. It is okay if an NHS nonfoundation trust is actually declaring its complaints and what is going on there whereby they are reputationally better because it is hiding and not telling anyone what is really going on in their hospital, because their figures and their information are not being made available to the public, and their board meetings and board papers are secret.
Mr Burns: I anticipated that you would be raising the issue of FTs because it would certainly seem to you, from the way you phrased your question, it is an anomaly that FTs do not have this compulsion in the way that a nonFT trust does. That was created when FTs were established under the last Government, partly as part of the ethos that they-
Q370 Rosie Cooper: Minister, I am not really bothered about the history of it.
Mr Burns: No. I thought that.
Q371 Rosie Cooper: The real problem for me is that this is the future. You are staking the benefits of the Health and Social Care Bill to people about choice and information. My question to you, with the situation as I have described and what is happening today, is: what are you going to do to change it?
Mr Burns: I was starting by putting in the context of how we got to where we are at the moment, which was part of the ethos, that FTs were independent bodies, and that was one of the situations that flowed.
I am going to ask my colleague, Mr Bostock, to tell you more about the background to that, where we are now and where we might be.
Chris Bostock: Thank you, Minister. There is absolutely no doubt, as you say, that 18 trusts out of 128 foundation trusts, about 14%, didn’t provide the central data returns. I think, as when I last appeared, there is an issue over the effectiveness of those data returns in the sense that it is quantitative data in terms of the number of complaints received. In going forward, working closely with the Health Service Ombudsman and other stakeholders, the Department of Health has been looking at driving improvement and learning from NHS complaints information. I understand, Chairman, that the Ombudsman sent you a copy of the signed protocol between these organisations in which it is openly accepted by all the signatory organisations, which includes the Department of Health, the Chief Executive of the NHS and, indeed, Monitor, that there is a clear need, as we move into the future, for meaningful comparable complaints information; in other words, information that is far more detailed than the information that is currently collected centrally. These systems don’t capture what we do need. Each organisation has to play its part.
Q372 Rosie Cooper: I see you reading that. The real big question for me is: this is your Bill. You are staking a core of it on the fact that it is more local, it is more freedom, it is more this, it is more that, it is more information, and yet there doesn’t appear to be anything built into the Bill to ensure that that happens, that FTs do declare that all that information is made available on a comparable basis. If that is a main tenet of the Bill, why are we working away in the middle? Why are we not saying that this will happen, that the information from all hospitals will be made available to people, be it patients or practitioners, and they can have information on an equal level?
Chris Bostock: That is something we have to consider. Currently on the NHS Choices website, for example, the statistical returns of those-
Q373 Rosie Cooper: No. We have had FT people here saying that they don’t make that information available and they have no intention of making it available.
Chris Bostock: If I may, that is quite right with regard to the KO41. There is a true disagreement as to how effective that information is. What I am arguing is that we need to look to the future. We need to shift the situation with more meaningful data.
Q374 Rosie Cooper: Minister, are you prepared to put that in the Bill? Are you prepared to say that in your Bill-actually find some part of it, in your amendments to come, which will assure the great British public that they, as the funders of this service, will be able to take out of it information equally, no matter who the provider is?
Mr Burns: The answer, as of now, is no. We are in a listening process. We have still to formulate and publish our response to the Information Revolution and how we are going to provide information both to patients and the NHS and, as my colleague has been saying, at the moment we do not have an intention to change the system with regard to FTs that we have at the moment.
Q375 Rosie Cooper: That is a frightening flaw in the heart of the arguments you use in promoting the new Bill. For example, David has talked to you about Mid Staffordshire. The truth is that Mid Staffordshire is an FT and Mid Staffordshire did not make that information openly available, did it, in number of complaints?
Mr Burns: Yes, but the point that I think Mr Tredinnick raised, with justification, was about the complaints procedures and what was going on at Mid Staffordshire. As I said in answer to him, we have an inquiry at the moment that is, among other things, looking at that point. It is a little premature at the moment, until that inquiry reports, to find out exactly what the problem was there, how it happened and what Francis recommends as a way of rectifying that.
Q376 Rosie Cooper: Forgive me, Minister, I was extrapolating that. If you are basing the Health and Social Care Bill’s great power in localism, I am suggesting that, without information, that localism is not of very much use to you because you don’t know what is going on. I am using the example of Mid Staffordshire as an FT, i.e. board, governors, all of it, was handled locally, and that failed dramatically. What I am saying is if it failed there-
Chris Bostock: I am sorry, but my understanding-and I may be incorrect in this-is that initially, at the time that the Mid Staffordshire incidents arose, it was not an FT and this information was not going through. It was an internal issue to some degree in the sense that the board was taking no responsibility for monitoring the complaints information to get those improvements.
Rosie Cooper: Okay.
Mr Burns: The point on Mid Staffordshire is that it is very difficult at the moment, because of the sensitive position that we are all in with the Inquiry that is going on. What we will know as a result of the work that the Inquiry is carrying out at the moment, which is comprehensive and indepth, is that Francis will produce a report in due course where he will tell us what he believes happened as a result of everything that is being carried out. No doubt, he will come out with recommendations and we will have to wait until that happens to see what he has discovered and what he recommends before moving forward in respect to Mid Staffordshire.
Q377 Rosie Cooper: I have one final question, Minister. If you are not going to require FTs to make available much more of the information, how will people locally be able to make the judgments you think they will be able to-choosing their hospitals and their practitioners? How will they do that if all the information is not available to them?
Mr Burns: For the very reasons that my colleague was telling you a moment ago, which he can reiterate if you would find it helpful.
Chris Bostock: Yes. There is an acknowledgment amongst all major stakeholders, which includes Monitor, that these data are required in order to drive forward the Choice agenda and other agendas within the modernisation. We have a statement of principles from major stakeholders. What we now need to do is work with these stakeholders to put it into effect and make it a reality, so that this information does become available with regard to complaints information.
The point I made when I was last here also is, for whatever reason-and let us not go into it-only something like 7% of people, according to the NAO "Feeding back?" 2008 report, who are dissatisfied with some of their services, made complaints to the NHS. It is important as well to pick up on other patient experience data, the concerns, the results of the surveys and so on and so forth. Complaints are important because once someone makes a complaint they feel driven to do so. But we need to take into account the whole of the patient experience when we are looking at data that is of use to individual service users.
Chair: May we move on from that, but possibly with the concluding thought that-and, Minister, we understand you are in a listening exercise and you can’t make new commitments on behalf of the Government and so forth-the Government might reflect on the wisdom of taking the new protocol of information that is required, not the old one which is acknowledged not fit for purpose, and consider how the commitment can be made that that information will be available from all providers of health care to NHS patients. Ms Cooper’s question is: if it is right for some, it should be right for all. There needs to be some confidence that the information will be forthcoming in accordance with that protocol, if I may crystallise what I think are probably the views of the Committee.
Q378 Andrew George: I was going to be a good boy, as I arrived late, and not say anything, but I was provoked and left rather baffled, after David Tredinnick asked his question, about how, under the Government’s plans, a complaint about a GP would be handled in future. Your response, Minister, was that you wanted to distance yourself from an approach which meant that Whitehall would be micro managing local issues which needed to be resolved locally. But you said that some would be handled by GP consortia. I would like to know how complaints about a GP would be handled because, as I say, I was left rather baffled by that response.
Mr Burns: I may be responsible for the confusion. I thought the question was about who will manage the process of complaints following the abolition of PCTs.
Andrew George: That is right, yes.
Q379 David Tredinnick: Also, if you will excuse me for butting in, the key issue was that it is policy it should go up to the Commissioning Board; the Commissioning Board should have much more say. My question was: what happens to the people who would normally complain to GPs or to the primary care trusts, which are going to be abolished in 2013 anyway? There appears to be a gap. I was slightly surprised when you said, "Don’t worry, it is the Commissioning Boards who are going to deal with this," because this certainly wasn’t the impression I got.
Mr Burns: No, there will not be a gap. Do you want to give the minutiae?
Chris Bostock: One of the principles behind the 2009 complaints reforms was that complainants would have the ability to complain either to the provider of the service or to the commissioner of the service, it being important for two reasons. First, anecdotal evidence and otherwise suggests that, particularly in primary care, some people are afraid to make a complaint, particularly in rural areas, because they fear being struck off unreasonably and so on. That, if you remember, was one of the recommendations in the Shipman fifth report.
The second is that there are occasions, particularly with complex or sensitive cases, where someone wishing to make a complaint may feel that it is appropriate to go to an organisation slightly more distant than the organisation that provided the service. That, therefore, means that, at the moment, the choice is to go to the GP practice, the NHS trust, or, alternatively, to the commissioner of that service. As the Minister has described, in the new framework, if that principle holds, some complaints will go to the GP consortium commissioning the care, if it is in the secondary sector, or, if it is in the primary sector, the complaint will go to the NHS Commissioning Board. The principle remains the same, but instead of a single set of organisations commissioning, there are two commissioning bodies.
Q380 Andrew George: That will be the patient’s decision as to where they feel most comfortable taking their complaint.
Chris Bostock: Indeed, yes.
Q381 Grahame Morris: Can I take the Minister back to his earlier response to a question from David Tredinnick about the Information Revolution, and can we consider it in the context of the inquiry that we are doing now on complaints and litigation and the thrust of the White Paper, "Liberating the NHS" and patients’ "No decision about me without me"? Given that we are in this kind of reflection mode, when we are pausing to think about where we are and what the implications of the Bill are and given that the consultation that we have had around the information strategy didn’t really address the issue of complaints data, is it not reasonable now to reflect on that and think that it should?
Mr Burns: No-
Grahame Morris: Such that a patient can make an informed choice about whether these issues will affect their choice of which provider they would go to.
Mr Burns: -because, if you look at the document that flowed from the White Paper on information, it was fairly comprehensive. What we are looking for, as you will know, Mr Morris, from our discussions in the Bill Committee, is empowering patients through providing them and others with information across the board that is comprehensive, that is easily understood and is impartial so that it can be accurate and enjoy the confidence of those looking for it. That will be across the range of health care, whether it is about someone’s local hospital, MRSA rates, cleanliness rates, quality of food or the standards of the quality of care. Also, there is nothing to stop it from including the performance of consultants and others in the hospital, etcetera.
Q382 Grahame Morris: Minister, I don’t mean to interrupt, and I appreciate that answer. On reflection-because we are not being a little contrite but we are having an opportunity to think about the general direction of travel-when the consultation was published, it didn’t mention complaints information.
Mr Burns: No.
Q383 Grahame Morris: Given that that is a key piece of information that would influence patient choice, do you think that it should have?
Mr Burns: No, I don’t. The complaints procedures are dealt with through the measures introduced in April 2009 and if one feels that there are failings or there are improvements that can be made to the way in which complaints operate at present, then that is the right area in which to look to seek to improve and amend, if necessary, not through this. The focus of the Information Revolution is to provide more information across the board so that people can see what is going on within the NHS and within health care in England.
Q384 Grahame Morris: Before I leave that, one of the issues that has come out of our inquiry is the problems that arise leading to complaints and litigation where NHS trusts or providers fail to acknowledge there is a problem or an issue. I am tempted to draw a parallel between your last answer and that situation, but I am going to move on.
I would like to ask you about the implications of the new health reform package, the new structures in the Bill, which have been touched on a little before. Your colleague Mr Bostock had mentioned previously that the Ombudsman has given evidence to the Committee identifying, in particular, the patchy nature of the complaints advocacy service, ICAS. What is your assessment of the fragmentation of commissioning units? Previously we only had one, didn’t we? We had the Department of Health. Now we are going to have-we don’t know the final number of commissioning units-quite a considerable number and we are going to have a plethora of different providers. What is your view on how that will impact on the complaints handling procedures?
Mr Burns: As you have rightly said, it is commissioned at the moment centrally from the Department of Health-
Grahame Morris: Which is quite simple and straightforward.
Mr Burns: Yes. There are nine streams from that. What we anticipate-and, of course, it is subject to parliamentary approval-is that, from 2013, responsibility for commissioning complaints advocacy services will transfer to local authorities. It could, as the Bill currently envisages, take three possible mechanisms. It could be commissioned directly from a third party, it could be commissioned from a third party but insisting that the provider operates within local HealthWatch or it could be placed within local HealthWatch if that is the option they think right. That is the right way forward because the more you use local commissioning and bring things down to a local level-and local authorities are far more familiar with what is going on on the ground within their areas-
Q385 Grahame Morris: If you will forgive me for interrupting, Minister, what we are looking for as well is to address this issue that the Ombudsman has identified in the patchy ICAS provision, the postcode lottery where in some areas it is very good and some areas it is very poor. Can you tell us what the role of HealthWatch England would be in coordinating a consistent approach to how complaints are dealt with?
Mr Burns: If you are talking about a patchy provision-
Grahame Morris: This is what the Ombudsman says.
Mr Burns: Let me finish the sentence. -and you have identified this as a criticism from the Ombudsman, to my mind a way of rectifying that, if it is a justified criticism-and I am not saying it is not-is for local authorities, who have a democratic accountability to the local area, to correct that problem. They are best placed to do that because they do have democratic accountability. They have to be responsive to the needs of local communities in a way that the Department of Health, stuck here in Whitehall, doesn’t.
Q386 Grahame Morris: Minister, could you share your thoughts with us? Is it in your mind that it is the intention of the Department to issue guidance through HealthWatch England about what a model approach would be to handling complaints for the 150 local authorities who are going to be responsible, or will you just let it evolve in each local area? In my view, that would encourage a variety of different arrangements and a patchy distribution of good and bad.
Chris Bostock: HealthWatch England will have the power-again, subject to parliamentary approval and the listening exercise-to provide advice to English local authorities. Within that context, were there seen to be problems in a given area, we would expect HealthWatch England perhaps to notify an individual local authority of those problems. Of course, local authorities, in a sense, are not subject to direction from the centre, either within the Department of Health or, indeed, from HealthWatch England within CQC, but, as a general principle, there is this ability to offer advice and provide information and the English local authority would then have to respond accordingly.
Grahame Morris: It does seem a bit vague, but I am grateful for the opportunity to raise the issue. Thank you.
Chair: We are having some difficulty with the loudspeaker service so could I ask you to speak up? Down this end of the room, it is not always crystal clear.
Q387 Rosie Cooper: The Minister described local authorities generating the complaints system. What real powers would they have over the NHS to ensure that it carried out and took cognisance of whatever decision they came to?
Mr Burns: I am sorry, I said local authorities would be the commissioning agents for independent advocacy services.
Q388 Rosie Cooper: We then have the independent advocacy arrangements. In this Bill what "duty" do NHS organisations have to make reparations or take cognisance of the outcomes? What I am getting to is this. It is very difficult in that, when a complaint is made, we will have a body that advocates for the complainant and then we will come to perhaps a decision that something should be implemented or not-perhaps even an action plan. Yet people come here and give evidence-patients have given evidence-saying that they have reached what appears to be an agreed decision and the action plans are never followed up. They are just a staging post. You have a tick box but no real action. No real change follows those decisions. What power is behind that to make sure the NHS organisations do what is required?
Mr Burns: The purpose, as you know, Ms Cooper, is that the independent advocates are there to help someone, whether it be in filling in forms, pointing them in the right direction or helping them with the progression of their complaint. That will continue whether it was being commissioned currently through Department of Health to provide a service somewhere or through the local authorities. Similarly, there are going to be local HealthWatches under the legislation who will be there to be able to give advice and signpost patients to the relevant areas to help them pursue their complaints. Therefore, there is a twopronged way in which patients will be helped to progress their complaints against an organisation.
The second part of your question, if I understood it correctly, was: what happens when a decision is taken on the completion of the investigation of the complaint and nothing is done? I think that is correct, is it not?
Rosie Cooper: Yes.
Mr Burns: I will ask Mr Bostock to fill you in on the details of that.
Chris Bostock: The separation that the Minister described is perfectly correct. The advocacy service is there to support and to enable people to use the complaints arrangements. Within its current role, they don’t actually act as an advocate in the sense of, for example, a barrister. They act as a support to allow people to make their own decisions and to assist them, when they have made those decisions, to take them forward. I think that is a separate issue with regard to the action plan. I certainly realised that there was evidence-it may have been in the 26 April evidence sessions-where there was an issue around ICAS on behalf of complainants having seen an action plan that was subsequently not enacted.
At the moment, in the response to a complaint, the organisation concerned has to explain what action, if any, is to be taken as a result of that complaint-what will be done to improve services as a result of that. I fully understand the point being made, that that does leave a gap in the sense that it is easy to write a letter which is then subsequently forgotten. Subject to further consideration, we need to look at whether or not this aspect of the regulations might be strengthened so that if a promise has been given to undertake a certain action then a followup letter goes out or, at minimum, it is accepted that the complainant may subsequently write, three to six months later, and say, "I am just checking on how you followed up from this," and expect a reply. It is a fair question.
Q389 Rosie Cooper: Absolutely, although the patients who have appeared before us are horrified that they get to a point where they think system changes will be made, they don’t happen and there is no check. While you don’t want to create an industry, as to those people who are sending out that letter, if it is your hospital, I can’t even begin to understand why you would not want to implement changes for the better.
Chair: It ought to be part of the job of the commissioner to make certain that it happens.
Mr Burns: Absolutely. That is a very valid point and we will await your report.
Q390 Chair: Can I ask you about a different question? We have what is now, as you have described it, a twotier system for handling complaints and it is the same system whether you are complaining about a lifethreatening failure of clinical management or the food being cold served on the ward. I wonder whether you think that it is sensible for those two types of complaint to go through the same process.
Mr Burns: Off the top of my head, yes.
Q391 Chair: Or would you like to write to us?
Mr Burns: I would be more than happy to write to you because one could say yes, in principle, but I fully take on board the rather practical point you are making: whether it would be more effective, efficient and sensible to have a twochannel system or where serious clinical and medical decision complaints are treated in one tier and the example you give of food and things that are important to people-but, in the run of things, may not be considered as critical as where there has been a significant failure in care-in the same tier so that it clogs up the whole system rather than prioritising them in different channels. If you would allow us to write, I would deeply appreciate that because it would give us an opportunity to reflect more.
Chair: We always welcome your "off the top of the head" answers but possibly the written answer might be more useful.
Q392 Valerie Vaz: I was going to lead you on to legal aid and litigation. I wonder what your views are in terms of the consequences of the removal of legal aid for clinical negligence cases and, also, this expansion of conditional fee agreements. We heard evidence earlier that insurance companies are going to be laughing all the way to the bank if legal aid is removed.
Mr Burns: As you are aware, this is being led by the Ministry of Justice. Again, as you know, they have recently consulted on their proposals on reforms to legal aid, which did include a proposal to remove clinical negligence from scope. We are all awaiting the Government’s response to that consultation and the information and the views that were fed into them on these proposals. In that respect, it is premature to give a view and we will have to await the Government’s response.
Q393 Valerie Vaz: I think you want to come back to this Committee because there are lots of things that we are waiting for. We look forward to having the Minister back at some stage.
Mr Burns: Nothing would give me greater pleasure if-
Valerie Vaz: It is so lovely to see you in any forum.
Mr Burns: You are too kind. Nothing would give me greater pleasure. I am not familiar with the time scale of you wishing to conclude your proceedings and publish a report, but, if you can wait, nothing would give me more pleasure.
Q394 Valerie Vaz: I am merely asking your view, Minister. But, following up on that, the NHS Redress Act was also something that was mentioned by Lord Justice Jackson. Do you have any views on that and any plans to bring it forward or bring it into effect?
Mr Burns: No. We don’t have any immediate plans to bring the 2006 Act into force or effect for the reasons I think you have been given. There is now a slightly changed situation on the table because, of course, Lord Young of Graffham, last October, published his recommendations and one of our colleagues, Mr Chope, has a Bill which is up for potential hearing-Second Reading-on 9 September, which would, in effect, if it were to be successful, as I understand it, implement the Lord Young proposals. I can tell you that we are looking at that to see if it ticks all the boxes and if it is relevant. We will, in due course, reach a view as to whether the Chris Chope Bill is a relevant vehicle for implementing the changes that we believe are needed.
Q395 Andrew George: I want to come back to the first question about the removal of legal aid support for clinical negligence cases and your answer was that you are awaiting the Government’s response. Of course, you are part of Government and, no doubt, the Department will have communicated the Department’s views about the potential impact of those changes on the NHS. I would like to know a little more about what the Department has done to communicate to the Ministry of Justice about what the likely impacts of this change would be on the NHS and the information that you glean from your service if medical negligence cases are potentially not taken up.
Mr Burns: You may be tempting me to go beyond where I am at liberty to speak at the moment, given that there are still intergovernmental discussions going on preparing the response to those consultations. To save myself from myself, I will ask Mr Bostock to answer your question for the simple reason that he will not possibly stray too widely in a way that, as a Minister, I shouldn’t because we are still discussing with the Ministry of Justice.
Andrew George: But you must have an opinion on this-
Mr Burns: I may well have an opinion on the subject but there are times, within the way in which Government works in which discussions on responses to consultation documents operate, where Ministers are not, at that point, at liberty to go too widely to explain what is being discussed.
Q396 Andrew George: I understand and accept that, but can you confirm that your Department has communicated to the Ministry of Justice, first of all, your opinion and that you have undertaken some form of impact assessment which has also been communicated to the Ministry of Justice in this regard?
Mr Burns: Yes. That won’t get me into trouble. I can tell you and I think you would expect the answer to be yes.
Andrew George: I just wanted to be assured that you had.
Mr Burns: The NHS Litigation Authority has been in close discussions with the Ministry of Justice on this whole area and in due course the Government will publish its responses. You can rest assured, if that is the narrow question you are asking, rather than the content of it-
Andrew George: The Department-
Mr Burns: The Department through the NHSLA-
Andrew George: Not the Litigation Authority, the Department.
Mr Burns: We have been doing it, primarily, through the NHS Litigation Authority because we regard that as the relevant body within the umbrella of the NHS to hold the discussions on our behalf. Yes, categorically you can rest assured there have been and will continue to be ongoing discussions between us and the Ministry of Justice.
Q397 Dr Wollaston: Minister, could I take you back a bit? Given that we have heard in this Committee that the proposed changes to legal aid will effectively remove recourse to justice to a very wide number of people, that is going to make it even more important that we tighten up the arrangements within the complaints mechanism for people to have what they say they really want, which is a proper apology. What action is the Government taking on its pledge that hospitals will have a duty of candour to be open and honest when things go wrong? We have heard consistent evidence that, despite reassurances that apologies don’t constitute an admission of liability, NHS organisations are still failing to offer unconditional apologies or to be open and honest.
Mr Burns: I totally agree with you. Where it has been established, when due process has taken place and it is quite clear that something has gone wrong or is unacceptable, a mistake has happened or, more seriously, things have happened that should never have happened, then I do believe that the relevant body responsible for this should apologise-a genuine apology.
Q398 Dr Wollaston: Yes. I think we all agree with that but how are we going to make it happen?
Mr Burns: Certainly, as a Department, we have been making it quite clear to providers and others that, as part of the processes, they should apologise when there has been an established failing or mistake on their part and that something should be done so that, where relevant, it shouldn’t merely be words.
Q399 Dr Wollaston: That is part of the problem with publishing the raw complaints data, that it can act as a disincentive for people to publish it. Going back to a point that you made earlier about the results of the consultation exercise regarding the IT revolution, I understand the point you made about not making it generally public at the moment, but would, say, Professor Steve Field have access to that data as part of his listening exercise so that that can be taken forward?
Mr Burns: To be quite frank, I don’t know, but I will certainly find out and get back to the Committee as soon as possible. I genuinely do not know. I don’t know whether he has asked to see it or whether, if he asked, he would be able to see it. I am not quite sure why he could not have the information shared with him at this stage, but I will categorically find out and let you know.
Chair: Do we have any other questions?
Q400 Rosie Cooper: Could I take you back to local and national HealthWatch, please? Could you explain to us what resources will be available to it and the mechanism for funding it?
Mr Burns: Yes. It will be funded through NHS funding via local authorities.
Q401 Rosie Cooper: Local authorities will not be expected to pay for local HealthWatch out of their budgets. From the Minister’s comment, you will be making available an extra sum. How will it work? As to national HealthWatch, will they be given an amount? What kind of resources will there be? How big do you see it? Is it comparable to the Ombudsman’s office? What is the scale of this?
Chris Bostock: The honest answer is that it is contained in the impact assessment that was published in support of the Bill. We can certainly provide that information, with regard to the CQC and the amount going into HealthWatch. It would be unreasonable for me to give a figure as I seem to remember it rather than give an accurate figure. With regard to local HealthWatch, again there is the funding that currently goes into the local involvement networks, the LINks. LINks will be evolving in the sense that they will become a part of a wider role within local HealthWatch. The funding from LINks already within local authorities will remain, but there will be additional funding which will pick up on the information, the signposts and roles which local HealthWatch will undertake which the LINks organisations do not.
Q402 Rosie Cooper: In the current strapped circumstances, will that funding be ring-fenced or could you have a varying level of service from different authorities depending on how much money they are prepared to put into it?
Mr Burns: No, it won’t be ring-fenced because the Government believes it is important that local authorities can manage local priorities and that they are best placed to respond to their local communities. Therefore, local HealthWatch will remain within local authority funding mechanisms through the formulabased grant and it will not be ring-fenced.
Q403 Rosie Cooper: How will you ensure the level of standards, making sure that that which is offered throughout the country is reasonably broadly similar?
Mr Burns: As to the quality of each local HealthWatch, that will be partly determined through the national HealthWatch who will obviously be keeping an eye on the performance of the local HealthWatches. Also, within the local health economy, people will be looking to make sure that they are responding to the levels and the standards expected, both through the local authorities and, I think, the Health and Wellbeing Boards, which may well have a view if it was felt that local-
Rosie Cooper: But no power.
Mr Burns: Let me come to the end bit. -HealthWatch was not operating, as well as pressure from members of the public-if they felt that they were being failed-and ultimately if there were a significant problem with a local HealthWatch and it was not meeting the required standards or fulfilling its functions to the level and quality expected, there is a provision in the Health and Social Care Bill that a local authority and HealthWatch England can make a joint application to the Secretary of State to have that local HealthWatch disbanded and start again. That is the ultimate sanction where one has a failing local HealthWatch.
Q404 Rosie Cooper: It comes back to national HealthWatch, its resources and the amount of money they have at their disposal. In other words, if the CQC is not properly resourced, then the level of service-the amount of time they can spend scrutinising those functions-will, of course, be limited.
Mr Burns: On the logic behind your question, yes, but I wouldn’t accept the premise of your question.
Q405 Rosie Cooper: But we don’t know what resources they are going to get.
Mr Burns: The premise of your question was "If CQC is not properly funded," and I-
Rosie Cooper: It national HealthWatch is not properly funded.
Mr Burns: Yes, through CQC-it flows through-and I am confident that it will be.
Chair: I think that more or less covers the ground.
Q406 Valerie Vaz: I have a quick question on the "no fault" compensation schemes. Do you have a view on those? There is one proposed in Scotland.
Chair: Are you following where Mr Salmond leads?
Chris Bostock: As you may know, when Sir Liam Donaldson, in 2003, started "Making amends," from which flowed the NHS Redress Act, the Department of Health considered "no fault" within that context and, at the time, felt-if I heard correctly from the earlier session-there is a potential of it pushing up costs and so on and so forth. As the Minister has explained, the Government is currently exploring the introduction of lowvalue personal injury claim schemes to address speedy resolution and costs as a possible alternative to changing to the "no fault" system with regard to clinical negligence.
Mr Burns: Of course, that is slightly wrapped up because it flows from Lord Young’s review of last autumn and depends on exactly what Chris Chope has in his Bill because, as you will appreciate, at the moment, he has not published a Bill, although it is going to be based on Lord Young’s review and proposals.
Q407 Valerie Vaz: But in your memorandum the Department of Health said that they had weighed up the risks of it and the costs. I wondered on what you based that evidence.
Chris Bostock: Do you mean with regard to "no fault" specifically?
Valerie Vaz: Yes.
Chris Bostock: It is a balance with "no fault". There are arguably advantages in terms of speedier resolution and lower administrative and legal costs but there are also downsides in that the overall costs may be expected to be higher than the current tort system because-
Q408 Valerie Vaz: But what are you basing that on?
Chris Bostock: Arguably more claims would fall within the scheme because you would not need to prove negligence in order for those-
Q409 Chris Skidmore: Why is there such a discrepancy in the Scottish report as opposed to what Liam Donaldson published? In Scotland they are saying there will be a 20% increase in claims, while Liam Donaldson said, back in 2003, that it would be an 80% increase in claims. I wondered if there was something radically different about Scotland and England that would lead to such a discrepancy. You may have your own view yourself but what do you reckon the level of increase might be?
Chris Bostock: At the moment-and again perhaps we can write with regard to that-the Department is keeping a close eye on Scotland but, subject to the outcome of keeping that close eye on development, there appears to be no reason to shift the position with regard to England.
Chair: Thank you very much. We shall weigh your words, look forward to your letters and you will look forward to our report.
Mr Burns: I think we owe you two, if my memory is right. We will get them to you as quickly as possible.
Chair: Thank you.
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