Examination of Witnesses (Questions 100-119)
MR NIGEL CRISP, MR STEPHEN WALKER MR STEPHEN ORCHARD CBE AND SIR HAYDEN PHILLIPS KCB
WEDNESDAY 17 OCTOBER 2001
100. May I ask you about the backlog of cases? This is genuinely a point of information. On paragraph 2.19 of the report it says that in 1999-2000, which are the last figures we have, the trusts and health authorities received 10,000 new claims and cleared 9,600. If I remember back to my school mathematics, that means the backlog increased that year by 400. Do you have any idea what the situation is in the year 2000-2001?
(Mr Walker) Yes. I do not have the exact numbers. We can give you them. We are making inroads into what is described as the backlog, but I should have to offer you a note as to the exact figures.
101. You are clearing more than you are receiving.
(Mr Walker) I believe that the Litigation Authority is and I think that the trusts are. Bear in mind that the trusts do have a higher proportion of the claims than we do and are not under my control vis-a"-vis claims and will not be until 1 April next year. I should be very reluctant to try to mislead you.
102. On the only figures that anyone in this room knows the backlog is growing.
(Mr Walker) In that year undoubtedly the backlog grew by 400, yes.
103. So you are not doing very well at reducing the backlog, which is one of the reasons why the Authority was established.
(Mr Walker) The backlog was not known about when the Authority was established.
104. I am talking about four or five years after the Authority was established.
(Mr Walker) I am sorry, I have misunderstood the question.
105. I am saying that in 1999-2000 you received 10,000 claims and you cleared 9,600.
(Mr Walker) Yes.
106. Those are obviously not the same claims.
(Mr Walker) Quite.
107. Four or five years after you were set up you are still in a situation where each year the backlog is increasing rather than being reduced.
(Mr Walker) All the report shows is that that was true for that one single year. I acknowledge that entirely.
108. It would certainly be interesting to see information on the latest figures.
(Mr Walker) I am sure we can deliver something along those lines.
109. May I turn to legal aid? Would you agree that in clinical negligence claims pursued with the support of the Legal Services Commission in effect the taxpayer is paying twice because we are on the one hand funding the cost of the claimants' legal bills and at the same time the taxpayer is paying for the cost of the NHS's defence. So the taxpayer is paying twice.
(Sir Hayden Phillips) Yes, that is correct.
110. Therefore there should be a special responsibility on the Legal Services Commission to ensure that the claims it funds have a good chance of success, so that the taxpayer is saved the double burden of dealing with them. Is it not extraordinary that only 24 per cent of claims in some way funded by the Legal Services Commission are successful?
(Mr Orchard) No, it is the same point as made in answer to Mr Steinberg and that is: 24 per cent of what? If you cannot make a judgement about the merits of a claim without getting information from the Health Service and the only way you can get that information is by getting legal aid in order to go to court to get an order to get that information, it is inevitable that there will be significant number of cases where once the information is available a good solicitor can determine there is no case. One of the key issues of course is reducing those cases significantly. One of the interesting aspects for us of Mr Walker's initiative which he explained to you about the £15,000 to £25,000 cases is that the Litigation Authority will take responsibility for getting those medical records. That therefore cuts a lot of time but potentially a lot of cost out of the system.
(Sir Hayden Phillips) I thought about this and I asked for some figures about the percentage of cases which were unsuccessful in litigation as a percentage of all claims because that could tell you another story. In fact that number is going down from 22 per cent in 1996-97 to 18 per cent in 2000-2001. What that indicates to meI do not know whether Steve agrees with thisis that the controls we are placing on quality and making sure that the only solicitors who take these cases are ones who are really able, are beginning to have an effect in the right direction. That is the only additional comment I want to make.
111. Would you agree that in 76 per cent of cases in some way public money has been wasted? The initial investigation both by your Commission and the Health Service has been spent even if the case is then dropped. In 76 per cent of cases this money is wasted.
(Mr Orchard) I would not agree that it is wasted if that is the only way you can get the information necessary to determine whether there is a case or not. I agree in real terms it is waste because there ought to be a better way of doing it. If there is no alternative and that is the only way, I would argue that you cannot define that as waste.
112. I believe in answer to Mr Williams you said you thought the group now set up to look at a potential new system had been set up after the report on the Bristol heart case. It is my understanding that it was actually set up before that and that until the Bristol heart report came out, there was no intention to look into the possibility of moving to a no fault compensation scheme and that that intention of now looking into that as a possibility has come out exclusively because of the strong support for such a scheme which was given in that report. Is that correct? If that is correct, how sure can we be that that group will look with a really open mind about that, given that originally they were not going to look at it at all, given that the report made it absolutely plain that one of the reasons why the cover-up went on at Bristol was that the medical staff concerned were so keen not to allow blame to be laid on one of their colleagues that they kept the thing hidden and under the carpet for a very long time with the result that a number of children sadly died who should never have done?
(Mr Crisp) I am asking my colleagues if they would just confirm the timings of these things. I think the substantive point is: will the CMO's report look at the issues which were raised? That is the substantive point in this, is it not?
113. And look at it fairly with a completely open mind, given that they were originally not set up to look at that.
(Mr Crisp) What they are looking at, clinical negligence, they are looking at in very wide terms. They have asked in wide terms for people to give them evidence, to give them ideas, give them thoughts about how we go forward. Bristol Royal Infirmary inquiry at this point is clearly part of the environment in which we are now working. Those issues need to be addressed as part of that and I have no doubt that issues being raised there are doing that because they are coming from a whole wide range of different areas. In terms of the timing, I am happy to check.
114. Unfortunately coming so late a lot of the questions I had have already been asked, so I am more interested in some of the answers we received. I should love you to read the answers you gave. When we started off with a backlog and we asked about the backlog and length of time the backlog occurred, we were given some response with regard to young children and then we went for a walk in the fields with the daffodils blowing and we did not want to be draconian and we did not to want to push the parents to make a settlement. You failed to mention that only 24 per cent of cases involved young brain damaged children of any nature and it is the remaining 76 per cent we were more interested in. When we asked about the 76 per cent of the cases we were then told they walk away and they do not pursue the cases and the lawyers do not pursue the cases. You did not say that of the cases actually settled this year the average time is 8.3 years and 22 per cent of the cases still take over ten years before settlement looks like being achieved. When we asked for any form of priority and what targets you had, I was not clear. Was I asleep at that particular time or did I miss the fact that you do have a set target, you realise it is important, there are people out there suffering and we have to do something about it?
(Mr Crisp) I made the simple point that there are many different issues and many different cases and we have to look at them.
(Mr Walker) There is no doubt that everyone involved with the Litigation Authority understands that every case which comes into the office involves a human tragedy. That sounds like platitudinous stuff but it is built into our training programmes and there is no issue about that. We try to settle claims as fast as we can. I have suggested that the constraints are not because of heel dragging by the Litigation Authority. In the scheme that the Litigation Authority managed from inception the average settlement shelf life of a claim is 1.6 years, as the report points out. We have a problem with the cases we inherited under the old system, whereby trusts and health authorities chose their own lawyers, instructed them, were not put under pressure either way, and we are trying to work through that now. It is possibly inappropriate to mention it, but it is a fact of life. We also work to a cash limit. We do not have unlimited resources. I could not go and settle all of these claims tomorrow, even if I were under pressure to do so from the very claimants who are asking for time to work on their cases. If your concern is that we are indifferent to patients who have been damaged, please let me reassure you that that is not the case.
115. So these cases are being processed, given the constraints the Treasury impose upon you when paying out funds.
(Mr Walker) Yes. We have to allocate priorities because we are cash limited like every other Health Service body.
116. When we were talking about the legal aid system and 24 per cent, I have no problem with the 24 per cent which successfully pursue their claim. What worries me is the 76 per cent which has fallen by the wayside. Why did they trigger their claim to start with?
(Mr Orchard) They would have had insufficient information to make an informed judgement about whether there was a genuine claim with good prospects of success which was relevant in terms of cost benefit. They therefore apply to us for legal aid in order to carry out investigative help and that is a limited form of legal aid which enables them to get the medical records, examine the medical records, if necessary get them examined by an independent expert and then to make a well-informed judgement about whether full legal aid should be applied for to take the case forward. Many of the 76 per cent would drop out after they had the relevant information because they would have concluded that there was no case to take forward. The point I was making to Mr Osborne was that there ought to be and could be a better way of getting that information so you do not have to get legal aid in order to get the medical records.
117. That is what I need to know. Where do we get the information? How do you satisfy the clients before they run off and seek compensation in the form of money? The report is rather naive to believe that people will accept an apology and some other recompense. They are in it for the money: it is as simple as that. As long as it is a no-cost-to-them scenario they are going to take us as far as they can go. Where were the checks? Were they put in place? Where was this panel which we need desperately, the clinical negligence teams in hospitals so people can explain to them exactly the risks of going into hospital, the risks they are undergoing, what the likely outcomes are and are we tracking people who are starting to make a profession of looking for compensation?
(Mr Orchard) When it gets to usand there is obviously a lot before that which is directly relevant to your question, which I cannot deal withthe reason that we have reduced the number of solicitors who can take clinical negligence, the reason we have been much more precise in the funding code, the reason we have introduced individual case contracts with risk sharing, is that the good cases can go forward and cases without merit or which any reasonable private client would not fund should be dropped at the earliest possible point. Let me put it this way. You do the clients absolutely no favours at all by telling them they have a good case, pushing it all the way and then them eventually losing. That causes real problems. It is far better that they can get honest advice and right advice at the earliest possible moment about the merits of their claim and the chances of success.
118. I agree with you and that is why this panel was set up to stop the other lawyers milking the system and keeping it going irrespective of the outcome to their client as long as they got paid.
(Mr Orchard) Exactly.
119. We know that but we have not cured the problem yet. Maybe we will cure it. If we are going to pay these lawyers, why not employ them directly?
(Mr Orchard) I suppose that is an option for any part of the legal aid scheme, civil or criminal. There is no particular issue about clinical negligence lawyers being employed rather than anyone else.
7 Ev 22, Appendix 1. Back
8 Note by witness: The 9,600 cleared are not necessarily from the 10,000. They may include old cases. Back
9 Ev 22, Appendix 1. Back
10 Ev 23, Appendix 1. Back
11 Note by witness: The C&AG's Report does not record any figure for the average time from claim to settlement for claims under the Clinical Negligence Scheme for Trusts. Back