Examination of Witnesses (Questions 20-39)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
20. Is it fair to say that all those three might be equally well met by a no-blame compensation scheme?
(Mr Crisp) We are looking at that. Periodically the no-blame compensation schemes have been looked at. That is precisely one of the major issues which will be looked at through the Chief Medical Officer's report. There are pros and cons for that. There are some arguments which suggest that over time we shall see an increase in claims which may not necessarily be appropriate for that sort of scheme. On the other side there is at least a prima facie case that the scheme will actually run quicker and be easy to handle if we move down that route. It is being debated very seriously and various variations of it are being debated very seriously.
21. Am I right in saying that in New Zealand they have such a scheme and the costs are actually down as compared to the situation before they introduced the scheme and that things are moving a lot quicker there?
(Mr Crisp) I have quite a lot of comparisons with other countries here, but they are not terribly good ones. One of the things that the CMO's report is doing is actually doing some proper research both about how different countries handle it and where the costs are. At the moment, if we look across a range of different countries, we do not yet see the sort of correlation you are talking about. I could look up the details about New Zealand, I do not happen to have them in my head at the moment. I suppose the point here is to reassure you that the process they are going through is looking precisely at those sorts of issues, looking at what we can learn from elsewhere, where we appear to be doing better, where we appear to be doing worse.
22. Given that one of the purposes of the scheme which we have agreed on is that it should in some cases at least pay for future care needs where an accident has taken place or some negligence has taken place which has caused the need for long-term care, does that not make it even more damaging that some of the cases take so long to clear up?
(Mr Crisp) It does; if that is what is happening. Mr Walker has pointed out for us that almost all of these cases really have quite individual characteristics about them. If we have particular cases where for some reason the NHS is delaying over them and that may be causing problems of the sort you are talking about, then we should not have those sorts of cases. Quite a lot of the cases which are taking time are not actually for that reason.
23. The reasons given were that it was necessary to work out just how bad the damage was in order perhaps to see how much care might be needed and therefore how much compensation might be paid. What system is in place for making provisional payments so that at least the care which is necessary while the case is going through the courts can be provided?
(Mr Crisp) The first point I would make is that, depending on precisely what it is we are talking about, depending on what the incident is, then the first thing we have to do is put in place the immediate rehabilitative care which is needed in any case. That is what we do if there is an accident in theatre or something of this sort. For the longer term issue and the question of how the Litigation Authority handle it I shall turn to Mr Walker.
(Mr Walker) Once liability has been established, and that is very often difficult of course, interim payments are always available. We simplify that process as far as we can, save only that in many of the more extreme cases where seven figure settlements are likely we try to contain the interim payments to immediate needs simply to avoid, should the child die, which is an unfortunately not infrequent occurrence, the parents being left in the embarrassing position ofthis is an awful expression in the circumstancesbeing over-compensated. Interim payments are always available once liability has been admitted.
24. What you seem to be saying is that it is actually quite a good thing that you can take 10 or 15 years or whatever to resolve a claim while you are waiting to see just how much the damage is because that may save you actually paying a large lump sum in order for the income to be used for the care.
(Mr Walker) No. I take your point and if I have misled you on that I apologise. It normally works to the defendant's disadvantage to delay cases. Damages are increasing at a rate very much faster than ordinary inflation, very considerably; perhaps three, perhaps four times the rate. Defendants do not gain a financial advantage from the delay. This is purely anecdotal. The books are there to be examined. We have no examples of claimant lawyers, Steve's 300 specialist lawyers' practices amounting to perhaps 1,000 solicitors acting for damaged patients, pressing us for earlier settlements. We are making interim payments on demand. We have consistently done so for five years now. I guarantee that there is no dragging of feet by the National Health Service in this respect.
25. What percentage of patients whose claims are outstanding for five years or more die before the claim is finalised?1
(Mr Walker) Perhaps one child per annum.
26. I still do not know what percentage that is. If you do not know the figure perhaps we could have a note on that afterwards. I understand you might not know that figure but it would be an interesting figure to have.
(Mr Walker) Only because it is so minuscule as to be insignificant. Certainly I am happy to prepare a note.
27. We talked about small claims before. In other cases, nothing to do with negligence, there is a Small Claims Court. Why can we not have a similar system for medical negligence claims?
(Mr Walker) We are proposing one from 1 April. What is colloquially called the CNST call-in is occurring. We are taking for the first time central control of all claims, all values and we are proposing what we are calling a fast-track scheme. Nothing original in the title. For fixed fees and to a guaranteed timetable we shall endeavour to settle claims as quickly as is possible. There are things which are outside our control. It is difficult sometimes to collect the evidence. I should be misleading you to suggest that we could do it in two or three weeks, but we can certainly dramatically reduce both the timescale and with that the costs on both sides as compared to the material you have seen from the existing liability scheme.
28. Which potential claims would be able to go to the Small Claims Court?
(Mr Walker) We are currently considering the threshold to be applied. Claims valued at up to £15,000 will probably be the lowest threshold we are proposing. It may be up to £25,000. Whichever the threshold is, the intention is that it would be a scheme which could be rolled out to encompass £30,000, then £40,000, then £50,000 if it proves to work after a suitable pilot period.
29. Where do community health councils fit into this? How can they help to speed the process up?
(Mr Crisp) What we did in early September was to report on the evaluation we had done of the complaints process, which clearly intersects with this. At the same time we outlined our proposals for replacing community health councils with a series of different bodies. That is currently out for comment before decision is made. What the replacement bodies can do is quite significant in a number of ways. The first one is that we are putting in place what we are calling Patient Advisory and Liaison Services, which actually will be about working with the patient as soon as possible. The earlier issues are taken on the better we shall be able to deal with them, whether they turn out to be a claim or a complaint. There is a significant point there. There is a second significant point which is that each unit, a hospital or whatever, each trust, will have a Patients' Forum. Included within that will be the right to nominate somebody from that Patients' Forum to be on the trust board. We shall now have a different role for the patient's voice. Given that trust boards need to review on a regular and routine basis as part of their governance arrangements how they handle complaints and indeed liabilities and claims, that is now bringing into that process much more clearly a patient's representative as of right. All of that is going to change the dynamics of this system and will help to improve the system: not just speed it up but actually improve it and make it more sensitive to people, which is important.
30. One of the points which has already been made is that very often some of these claims can be avoided by getting the trust to apologise in some way, sorry, they will not do it again, or whatever. That can often happen if there can be a setup in which the patient who has been damaged can actually talk to the medical staff in some way. In my experience that has always worked quite well with community health councils in the past in that community health councils are clearly seen as independent and able to talk on the patient's behalf. One of the criticisms which has been made of your new suggestion is that the new bodies will seem to be too close to the trusts concerned to be properly objective. Do you not see it as a potential loss therefore and perhaps a potential increase in the likelihood that patients will in future feel the need to go to a claim rather than simply have it out directly with the medical staff?
(Mr Crisp) There are two balances here. I understand the point entirely about the need for independence, but there is also the importance of the fact that if you are actually part of the trust board then you really are in on the decision making. There is a question that it is very important to have people in on the decision making but we do have a backup. The backup is the Independent Advisory Service. I mentioned the Patient Advisory and Liaison Service, which is about providing support to people with concerns or complaints and that will have an independent element to it.
31. It has always seemed to me slightly odd, and this comes back in a sense to what I was talking about earlier about the payment for care, that we make all these payments by way of a lump sum. If you are to pay for the future care for somebody who may need a lot of long-term care which can be very expensive and you have no idea how long it is going to go on because you have no idea what the life expectancy of the patient is, then paying a lump sum means a very large sum which may sadly not be used for very long and that sum may then be left with the patient's relatives. There is good reason to suppose that the patient's relatives also deserve some compensation in a sense for the extra trauma they have been put to, but would it not make more sense that a sum should be set aside from which the income could be used by way of payment for care as well as perhaps a lump sum in terms of compensation, so that the lump sum is not permanently lost to the public service?
(Mr Crisp) In the CMO's working party on clinical negligence, they are looking to ideas related to that about exactly how payments are made and how that relationship would work and there are pros and cons, arguments such as that being made. They will be reviewed as part of that process and we shall be looking at them some time earlyish in the new year.
(Sir Hayden Phillips) We have consulted from our end on structured settlements through the courts by which periodic payments would be made rather than lump sum payments being made to take account of some of the sorts of issues you describe. We have consulted on that. There are divided views about whether that is the right thing to do, about whether the court should have the power to oblige such settlements. We are looking at the results of that and we hope to put some proposals out early in the new year.
32. I understand your Authority was set up in 1995.
(Mr Walker) That is correct.
33. Were you Chair at that time?
(Mr Walker) Chief Executive. I was appointed in 1996.
34. When you took over, you were told by Mr Crisp's Department that you were to give top priority to the clearing of backlog cases. Is that so?
(Mr Walker) Not in terms, no.
35. Are you saying the NAO have got it wrong?
(Mr Walker) I am not sure the NAO say that that was ever our absolute priority.
36. They do in a briefing to us.
(Mr Walker) Forgive me. When the Litigation Authority was created the objective was initially to manage the Clinical Negligence Schemes for Trusts. As a secondary objective, we were asked to manage what was then created, the Existing Liabilities Scheme, that is to say the scheme which encompasses older claims, the scheme which the NAO have investigated and reported upon. At that time there was no central figure for either the number of claims or value of claims outstanding. Resolving them was an objective within the terms of our general framework, namely to deal with claims, defend them robustly where that was possible, satisfy claimants where a liability was established, but no priority order was set as you suggested.
37. We shall pursue that in a moment. Six years later, when this report was published in May of this year, there were no action plans, no targets to address these older claims.
(Mr Walker) That is correct.
38. Why not?
(Mr Walker) Because the claims were being dealt with in order of priority. The priorities which apply in settling claims are initially those set by the court, so that if claimants proceed towards litigation clearly that imposes a priority and we deal with those ones first of all. Secondly, those which were ready to be settled. The third order, which is the high volume, are those which we are dealing with as they are pursued by claimants. As you have seen from the figures, a significant proportion of claims disappear; they are not proceeded with. I do not think it is part of our brief to go out and settle claims which may not be proceeded with where there is at the very least an arguable defence for the National Health Service.
39. The Commission seems to have gone in for a little bout of hyperactivity since the publication of the report and has reviewed 700 cases which are over five years old. What stimulated this burst of activity?
(Mr Orchard) This came out of one of the regular meetings which was recommended between the Litigation Authority and ourselves to look at issues which were of interest to us both. They provided us with a list of 700 cases. We tracked them down in our systems with a view to establishing initially their current status and then to see whether they needed to be moved forward in any way. For example, in ten per cent of them we found the legal aid certificate had already been discharged and revoked.
1 Ev 21, Appendix 1. Back