The NHS Redress scheme aims to provide a viable alternative to litigation and to slash legal costs. But, as Cameron Timmis reports, lawyers fear patients may not be treated fairly

When the NHS Redress Bill was launched last November, health minister Jane Kennedy was in little doubt as to one of the main driving forces behind it. She said the scheme would ensure ‘money is spent on compensating patients’ rather than ‘on the disproportionate legal costs’ – noting that it would slash £7.6 million off the amount the NHS spends on claimant lawyers’ fees in just the first year.


The government maintains that litigation is not a good system for dealing with most clinical negligence claims. The adversarial style breeds confrontation and acrimony between opposing parties, it suggests, meaning that cases take too long to settle, and the legal costs can be extortionate.


Instead, it plans to introduce the NHS redress scheme, which it says will provide a ‘fair, equitable and appropriate response to people who have been harmed in hospital care’. Expected to be in place in 2007, the Bill is currently being debated in the House of Lords.


While much of the detail of the scheme has yet to be fleshed out – this will be dealt with by secondary legislation later in the year – the basic framework is fairly clear. It will provide a mechanism for settling low-value claims arising out of NHS hospital treatment up to a maximum value of £20,000 (as currently proposed). The redress to patients will also include an apology, a full investigation of what went wrong, and remedial treatment where needed.


Once an eligible claim has been identified – either by the NHS trust involved or by the patient – it will be investigated by the NHS Litigation Authority (NHSLA), which will make an offer of settlement where it deems it appropriate. To be successful, claims will still have to satisfy the standard Bolam test for clinical negligence, which means that the legal standard of care will not have been breached if the practice used was considered acceptable by a responsible body of similar professionals.


The scheme is intended as an alternative to litigation and will not be compulsory, but, by accepting an offer, patients will waive their rights to pursue a separate court claim.


According to the Department of Health, the majority of NHS clinical negligence cases will be eligible for the scheme. In 2004/05, for instance, around 75% of total claims fell within the £20,000 threshold.


One of the scheme’s explicit aims is to reduce legal costs. These are substantial: out of a total £503 million paid out by the NHSLA in connection with clinical negligence claims in 2004/05, nearly 30% consisted of legal costs. The government is particularly concerned about the relatively high costs of litigating lower-value cases. According to the chief medical officer’s 2003 consultation paper, Launching Amends, in the majority of cases under £45,000, legal costs actually exceed damages awarded to the patient.


As one of the aims of the redress scheme is to circumvent the traditional legal process, it is not necessarily a surprise that many clinical negligence practitioners oppose it. They claim that it will threaten patients’ ability to secure proper levels of compensation – in short, their access to justice.


One major concern is the extent to which patients will have access to legal advice. Under the current proposals, the scheme will only give patients the right to seek advice to review an offer of damages from the NHSLA once it is has been made. For this advice, solicitors will be paid a flat fee.


Claimant lawyers argue that this level of advice will be too little, too late. ‘I’m all for finding speedy mechanisms for patients – I always have been,’ says Grainne Barton, a partner at specialist clinical negligence firm Parlett Kent in London. ‘But that can’t be at the expense of patients being told this is the value of a claim and accepting it without independent advice. A lot of cases involve the elderly, infirm, bereaved, people coping with a disability… what’s worrying is that they may accept [an offer] at face value.’


Sam Critchley, a clinical negligence specialist at City firm Field Fisher Waterhouse, echoes these concerns: ‘One of the problems we see is that the NHSLA invariably undervalues claims.’ She cites a recent case involving one of her clients who suffered a faulty hip replacement. ‘There was an early admission of liability. They initially offered £15,000. Fortunately, the family came to seek legal advice and I settled the case for £130,000. The problem at the moment [with the scheme] is that if the client had accepted the award, there is no appeal process.’


Claimant lawyers also argue that because of the complexity of clinical negligence cases, it will be difficult for them to review an offer for settlement without conducting a full investigation into the facts. ‘Often cases that appear straightforward are not that straightforward,’ says Ms Barton. ‘If we are to properly compensate patients under the system, we must have access to medical expertise. It doesn’t appear that it would allow us to do that.’ She says the fees currently being proposed under the scheme are ‘very minimal’ and ‘sufficiently low to worry how we could fulfil our role in advising the patient’.


Under the proposals, the scheme will be administered by the NHSLA – rather than a body independent of the NHS. Effectively, lawyers say, this means it will be acting as advocate, judge and jury. ‘The NHSLA is an organisation set up to defend claims of clinical negligence,’ says Muiris Lyons, a partner at leading clinical negligence firm Alexander Harris. ‘Now it’s suggested they should also administer the scheme as an impartial body. But it doesn’t square. How can it be impartial when it is part of the NHS?’


Russell Levy, joint head of clinical negligence at Leigh Day & Co in London, says the lack of independence ‘subverts’ the scheme. ‘From a lawyer’s point of view… it’s completely ludicrous. There’s no impartiality, no fairness.’ Because of this, he says, the scheme is a ‘massive lost opportunity’ for patients.


Mr Levy also notes that those who refuse to participate in the scheme will be denied legal aid funding should they decide to proceed with a court claim instead. This is compulsion in practice, if not in name, he observes.


Defendant lawyers are more ambivalent about the scheme. Bertie Leigh, senior partner of Hempsons in London, says the proposals will help the NHS to investigate cases more swiftly and cheaply. But rather than limiting access to justice, as claimant lawyers argue, he fears the scheme may encourage claims which would not otherwise be brought. Indeed, the government’s own figures anticipate there could anything between 2,000 and 19,000 extra clinical negligence claims in the first year of the scheme.


‘There is a danger of encouraging people to complain about every minor inconvenience that they suffer,’ he says. ‘Look at the experiences of tripping cases in Liverpool. It is said if you trip over a paving stone in Liverpool, before you pick yourself up there is a queue of five people waiting to trip over the same stone. If we encourage that sort of culture in the NHS, we will bitterly regret it.’


One good aspect of the scheme, contends Mr Leigh, is that it offers ‘no attractions to claimant lawyers’. He says claimants’ costs in clinical negligence cases are typically ‘four times’ those of defendants.


Mr Levy dismisses this figure as ‘misleading nonsense’. He says: ‘In a direct comparison of the hourly rate for claimant and defendant lawyers, it is precisely the same when they win a case. Claimant lawyers have to do more work because they bear the burden of proof – but defendant lawyers have the power to reduce costs by admitting liability earlier.


‘You cannot carry out an investigation cheaply. If lawyers get paid up to a third of what a damages award is, no one is going to quibble with that.’ The real problem, he says, is the attitude taken by defendants: ‘We had a period where defendants were more readily accepting that claims needed to get settled. What has happened is that the insurance mentality has crept back in – they fight tooth and nail.’


Ms Critchley notes that the cost of clinical negligence claims is a ‘very, very small percentage’ of the overall NHS budget. ‘What you have to bear in mind is the cost to the NHS of patients who have been injured as a result of clinical negligence. A lot of my clients have been severely injured; the cost of their ongoing care and to the NHS is huge, much higher than the legal costs of pursuing these claims.’


Cameron Timmis is a freelance journalist