An NHS redress scheme that avoids the courts will help many, but in complex cases patients will be let down, says Nigel Godsmark

For those involved in clinical negligence litigation the recent Queen's Speech contained the following tantalising promise: 'A Bill will be brought forward to support patients who wish to seek redress should they experience problems with their healthcare.' What is proposed is an NHS redress scheme based on the proposals of the Chief Medical Officer's 2003 report, 'Making Amends'.


While the Queen's Speech made no reference to a 'Compensation Bill', the government is advertising its intention to attack the so-called compensation culture. We are told this will involve resisting invalid claims. The government promises to introduce whatever legislation may prove to be necessary to address these issues and the emphasis in a Compensation Bill is on maintaining a fault-based system of redress for injury or damage suffered.


In 'Making Amends', Sir Liam Donaldson reviewed the options for a system of redress for those suffering loss or injury during treatment at NHS hospitals. He considered a 'no-fault' scheme but was concerned that the NHS simply could not afford it.


His proposal was for some sort of NHS redress tribunal. To be eligible for payment a patient would have to show 'seriously substandard NHS hospital care'. In addition, the harm suffered must have been such 'as could have been avoided' and must not be the result of natural progression of the illness.


If these criteria are met then a package of compensation is provided comprising a managed care programme provided by the NHS and some cash to provide that which the NHS cannot. Payment for pain, suffering and loss of amenity would be capped at £50,000. A claimant would be able to go through the court system if he wished, but he would have to elect which route to take.


The plan seems to be to have a tribunal that would continue to determine clinical negligence issues very much on the current basis (with all their complexity) but without cluttering up the process with lawyers. As 'Making Amends' puts it, legal fees would be reduced 'as it would not be necessary for lawyers routinely to be involved'.


But Sir Liam recognised that birth-related brain damage cases were particularly complex and frequently raised difficult issues of negligence and causation. Therefore, he suggested a separate NHS redress scheme involving, in effect, no-fault compensation for these cases. However, this recommendation will not be implemented and will form no part of the NHS Redress Bill, according to the Web site of the Leader of the House of Commons.


Lawyers who deal with birth-related brain injury cases are regularly humbled by the care and devotion lavished on badly brain-damaged children by their parents. These are not generally people who embark on legal proceedings for redress lightly or who would consider themselves part of any compensation culture. They will go to specialist lawyers for support and advice on their right, if any, to damages.


There is no suggestion that any compensation culture exists with the lawyers. In fact the report found that 60-70% of clinical negligence claims do not proceed beyond initial contact with a solicitor or disclosure of medical records. Lawyers usually do a good job of filtering unrealistic or weak claims.


There must be concern that rather than 'support patients who wish to seek redress' the outcome of the proposed Bill will be to deprive those who need it.


Nigel Godsmark QC is based at 7 Bedford Row in London