Clinical negligence cost the NHS £503m last year, much of it in legal costs. Nigel Godsmark asks whether the NHS Redress Bill may be the answer

The NHS Redress Bill, as introduced into the House of Lords last month, has provided little for clinical negligence practitioners to get their teeth into.


The government had made plain its intention to find a new way of dealing with clinical negligence claims, which are costing the health service a lot of money - some £503 million in 2004/05, of which some £150 million was paid out in respect of legal costs.


The problem seems to be two-fold - people are being compensated for sub-standard medical treatment and lawyers are getting paid for helping them.


The solution to this conundrum is to be the provision of a new NHS redress scheme. The Bill itself is nothing more than an enabling Bill, with no details of the scheme that is to come. The scheme is likely to have its own method of assessing damages for clinical negligence. The amount of financial compensation payable on a claim will be capped, but the NHS itself will deal with requirements for care or treatment, contracting to provide what is deemed necessary. Presumably, the scheme will also require that full credit be given for statutory benefits received without limit of time.


There is to be provision for claimants to receive free legal advice and assistance within the scheme, to the extent that the Health Secretary considers appropriate. And it seems that provision of such legal advice will have to come from those on an approved list.


Given the clear objective in driving down the legal costs of clinical negligence, it seems likely that specialist independent adjudicators will deal with claims - a clinical negligence equivalent of the Criminal Injuries Compensation Scheme.


However, there will be one important difference. The NHS redress scheme will not be the only route to recompense for a patient who receives sub-standard care or treatment. The scheme is to be an alternative to civil litigation. Indeed, the Bill provides that the scheme will not deal with any claimed liability that is, was or becomes the subject of civil proceedings. Thus the aggrieved patient can choose at any stage before settling a case under the scheme to back away and take civil action.


The scheme is likely to succeed if it is able to achieve for claimants something that civil litigation cannot, or is able to achieve something similar either more cheaply or more quickly. Apologies and explanations may well be something that civil litigation cannot necessarily provide, but it is not all that claimants seek. Whatever concerns one may have for claimants under the scheme, it will be they who choose to use it in preference to civil litigation.


The scheme is to be introduced for relatively small claims, with an upper limit of £20,000. Assuming for the moment that the £20,000 is calculated on a conventional basis rather than an 'artificial'-scheme basis, then this an excellent area in which to test its operation. If the new scheme can provide satisfactory outcomes for this level of claim, it will be providing a service that the current civil litigation system struggles to deliver. By the same token, if the scheme fails to get to grips with claims worth up to £20,000, then the writing will be on the wall for any expanded claims level.


Nigel Godsmark QC practises at 7 Bedford Row, London