NHS Redress Scheme - Essay Example

NHS Redress Scheme: A discussion with regard to the tort based clinical negligence system Introduction The introduction of the Bill for NHS Redress Scheme to provide a consistent, speedy and appropriate response when something goes wrong with a patients hospital care, and to provide investigations, explanations, apologies and financial compensation where appropriate has been a welcome step in the UK healthcare system. The scheme is intended to provide an alternative to litigation for the cases that fall within its ambit, including addressing the delays and legal costs inherent in the existing system. Indeed, “the type of litigation of which the medical profession is most aware is the claim for damages for professional negligence. It is notorious that the number and size of claims has grown...”1. By terms of the NHS Redress Bill, patients will no longer have to go to court to get compensation, care, apologies and investigations if something goes wrong with their NHS hospital treatment or care. The scheme is aimed to ensure that NHS money goes directly on benefitting the patient with less spent on legal costs. The Bill empowers the Secretary of State to establish an NHS Redress Scheme and entrusts the providers and commissioners of hospital services with the duty of ensuring that patients receive a more consistent, speedy and appropriate response to clinical negligence. Indeed, the need for such a system was long overdue. Under the current tort system, legal proceedings for medical injury are frequently conducted in an atmosphere of confrontation, acrimony, misunderstanding and bitterness. It is seen that more emphasis is given on revealing minimum information on things that went wrong, defending clinical decisions that were taken and only reluctantly releasing information. Prospects that an injured patient will receive due compensation are mired in uncertainty and, when achieved, may involve many years of stressful legal action, causing enormous expense. Patients ineligible for legal aid are often compelled to stay away from legal proceedings because of the risk of serious financial damage emerging out of an unsuccessful action. By terms of the current tort-based system, the onus of proving the harms caused by a breach of the duty of care rests on the claimant. The adversarial and blame orientated nature of this system is not conducive to the culture of openness required by clinical governance and the NHS Plan2. There is increased concern about recent trends in medical litigation. The Pearson Commission in l978 declared that: “…the tort system is too costly, too cumbersome, too prone to delay and too capricious in its operation to be defensible3.” The Current Tort-based System The tort of negligence came into existence in the UK with the case of Donoghue v Stevenson (1932)4, when commercial liability for defective produce was established. Medical negligence, as a legal concept, is quite a recent development. The Bolam proceedings of 1950 acted as the main precedent in the establishment of medical negligence. This case brought forth the “Bolam test”, which has been the basis of legal proceedings arising out of medical negligence in UK for more than 50 years now. The test provides a defence for medical professionals when they have “acted in accordance with practice accepted as proper by a responsible body of medical opinion”5. The test is derived from Bolam v Friern Hospital Management Committee (1957). In practice, this rendered it very difficult for claimants to win a negligence case. Also, it has been an arduous task for the law to achieve any consistency in the medical field. This is primarily because the very aspect of assessing whether the standard of care has been met and issues of causation greatly depend on the opinions of the medical profession itself. Furthermore, the evidence produced by the claimant is required to satisfy the burden of proof. The burden is satisfied and negligence is proved only if there is more than 50 percent chance that the claim as argued is correct, i.e. the duty was owed and the breach caused the injury. Hence, the question of law is based on assessing the medical chances of recovery. If given proper treatment, the claimants chances of avoiding the current level of injury were anything less than 50percent, he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable. The law draws a dividing line between liability arising out of acts and omissions, and liability arising from misstatements. The Bolam principle maintains that health professionals are not negligent if they act in tandem with a practice accepted at the time as proper by a responsible body of medical opinion, even if other practitioners adopt a different practice. Moreover, a rule of “reasonable reliance” by the claimant on the professional judgment of the defendant was established by the case of Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. (1964)6. Due to the nature of the relationship between a health professional and a patient, it is quite reasonable for the patient to rely on the practitioner’s advice. Thus, while Bolam applies to all the acts and omissions constituting diagnosis and consequential treatment, Hedley Byrne is concerned with all advisory activities involving the communication of diagnosis and prognosis, advice on therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent. Under the current system, if a hospital is negligent in failing to examine a patient and the patient dies, no compensation can be claimed if there does not exist sufficient proof that the deceaseds death is a result of that negligence. This is an instance of causation— a device used by the Courts to ensure the defendant will not be liable for losses he did not cause. The case of Barnett v Chelsea & Kensington Hospital (1968)7 exemplifies this situation. In the Whitehouse v Jordan (1981)8 case, no compensation was awareded to the claimant on grounds that the doctors standard of care did not fall below that of a reasonable doctor in the given circumstances. It was held that an error of judgement does not amount to negligence in a highly professional context. Furthermore, the system has it that consent does not require an elaborate explanation of remote side effects and thus claims for damages resulting from such situations are rejected. “The Bolam principle should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed” 9. Hence, it is evident that winning claims for medical negligence are very difficult. In the Maynard v West Midlands Regional Health Authority (1985)10 case where the patient suffered a paralysis of the left vocal cord, the decision of the physician and the surgeon was considered reasonable in all circumstances. Moreover, compensation is proportional to the nature of medical breach. In the Hotson v East Berkshire Area Health Authority (1987) case, the compensation granted was worth only 25 percent of the full value of the damages awardable for the plaintiff’s disability. The judge concluded that even on account of correct diagnosis, there was a 75 percent risk of the plaintiff developing a disability, but that the medical staffs breach of duty had turned that risk into an inevitability, thereby denying the plaintiff a 25 percent chance of a good recovery. Thus, “on the balance of probabilities, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation. It was therefore irrelevant to consider the question of damages”11. Also, a defendant is taken to have caused “if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct the injury even though the existence and extent of the contribution made by the breach cannot be ascertained”12. Such claims, if it is impossible to ascertain that negligence had caused, or materially contributed to the injury, are commonly dismissed. In situations where it can be proved that the decision-maker was not only negligent, but also acted with malice, the tort of “misfeasance in public office” may give rise to a remedy. In the case of Bolitho-v- City & Hackney Health Authority (1997)13 it was decided that where it could be demonstrated that the professional opinion was illogical then the judge could hold that opinion unreasonable. In the same case the House of Lords also determined that if one of a number of alternative methods of treatment was used even though it was supported by a body of medical practitioners, a finding of negligence may still result if the method of treatment did not stand up to logical analysis. Furthermore, there are decisions, which demonstrate that the judge is entitled to approach expert professional opinion in order to reach a defensible conclusion. For instance, in Hucks v. Cole (1968)14, the doctor did not treat the patient, suffering from septic places on her skin, with penicillin patient though he knew them to contain organisms that could lead to puerperal fever. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. The Court of Appeal found the defendant to have been negligent. It is evident that the current tort based clinical negligence system is not efficient in duly compensating patients, and leaves a lot of distressed patients and doctors in its wake. As such, a more equitable compensation system has become imperative. The NHS Redress Scheme: Inconsistencies There is no doubt that the Redress scheme is expected to come as a relief for patients suffering from medical negligence. It is hoped that the scheme will enable claims to be settled with greater speed and precision, and to the satisfaction of patients, doctors and the NHS. However, there are various issues, which are yet to be clearly stated. As per this scheme, a panel of experts is to be appointed to investigate alleged negligence and patients are to be clearly explanation and informed of any action proposed to prevent repetition. There is also a proposed package of care providing remedial treatment, and continuing care where needed. But specialist, independent legal and medical advice should be made available to claimants in order to prevent people from the risk of being pressurised to settle for what could be much less than they need or deserve. The NHS Redress Scheme does not intend to take away a patient’s right to sue, but those accepting the benefit of care and compensation under it would be required to waive their right to invoke the law on the same case. As such, concerns have been aired that it is highly insufficient to simply say the right is there, it has to be made practically possible for them to go to seek legal aid in case they feel their claim has not been resolved or appropriately handled by the redress scheme. Also, clarifications are required on various other aspects. It is claimed that the Scheme will increase expenditures on compensation payments, for it will bring new claims into the system. However, in the long run, savings on legal costs are expected. Under the proposed scheme, the criteria to establish whether the cause of an individual’s injury is from negligence are still unclear. There is no mention as to who is going to advise people on whether or not they are eligible to enter into the redress scheme. Moreover, the upper limit of £20,000 is a low level and there are concerns that the scheme will be able to deal only with very minor cases. The lower the financial cap, the more the scheme will cost as it will encompass people who probably would not previously have resorted to legal action. Furthermore, there are no explanations regarding the workings of the compensation system. Issues like what proportion of claims settled currently through the legal system amount to £20,000 or less, whether the £20,000 limit excludes costs such as legal fees, whether remedial treatment costs are included within this figure are yet to be clarified. In cases where remedial treatment is required, there is no mention regarding the mechanism that is to ensure that the treatments and/or rehabilitation are provided to the claimant. Furthermore, reference is lacking in the bill for an appeals mechanism should the claimant disagree with the decisions made under the scheme, such as whether or not the claimant is entitled to redress under the scheme, or the level of the compensation offered. Also, there is no explanation about the process by which redress will be claimed should clinical negligence occur when an NHS commissioner in England refers a patient for treatment to a provider across the border in Scotland. In wake of these ambiguities, people from various quarters including the legal and medical circle have been sceptical about the real benefits of this scheme. However, it is still a welcome step, given the cumbersome process involved in the existing tort-based system. Conclusion In recent years, negligence actions have proved quite costly for the NHS. The annual NHS clinical negligence expenditure rose from £1million in 1974/5 (£6.33 million at 2002 prices) to £446 million in 2001/2002 15. This expenditure rose to £503 million in 2004/05. The continued growth of conditional or contingency legal fees and other means of funding litigation have undoubtedly contributed to an increase in the cost of clinical negligence cases16. This is, indeed, a sharp increase in the cost of compensating patients for clinical errors, however, this figure is well below 1% of the NHS budget. Also, there have been a lot of issues centering the cost of clinical negligence to the NHS. But less than 1% of all people who are harmed by avoidable medical accidents actually make a claim. Some circles have expressed the view that more funds should be directed towards prevention. The main recommendation of the Bill is the setting up of ‘The NHS Redress Scheme’, one of the limbs of which seeks to cover neurologically impaired babies where the birth was under NHS care and the impairment was birth related. A National Audit Office review found that in the majority of claims under £45,000, the associated legal and administrative costs actually exceeded the final damages award. In wake of such escalating cost of settlements and the growing readiness of patients and lawyers to pursue claims have led in recent years to doctors’ insurance premiums becoming more expensive. As quoted by Jane Kennedy, “The NHS Redress Bill means fairness for patients, not fees for lawyers. It is an important step in preventing a US-style litigation culture”17. As such, the NHS Redress Scheme can be expected to bear positive results in the future to come. References: Read More