PAULA ROHAN FINDS THAT SOLICITORS' AND PATIENTS' GROUPS HAVE HAD A MIXED REACTION TO SIR LIAM DONALDSON'S REPORT ON CLINICAL NEGLIGENCE REFORMS

Presenting his long-awaited report on clinical negligence reform to journalists last month, chief medical officer Sir Liam Donaldson opened with a slide of a poster displayed in a hospital waiting room two years ago.

'Did the doctor or nurse make you worse? We can get you compensation!' ran the slogan.

Sir Liam was unimpressed with this advertising technique from Newcastle law firm Samuel Phillips & Co.

'The spectre of a culture of heavy litigation of the kind displayed in that poster, and which has begun in the US, is something we want to avoid,' he said.

Rod Findlay, joint head of clinical negligence at Samuel Phillips, is unrepentant.

'We were criticised for advertising but it is not the same level of criticism targeted at personal injury advertising,' he argues.

'I think this indicates that people are being discouraged from bringing claims against the NHS.'

Mr Findlay - along with countless other claimant clinical negligence solicitors - is no doubt still feeling stung by last year's National Audit Office report on the cost of clinical negligence claims, which showed that provision had almost doubled from 1998 to 4.4 billion.

The resulting headlines, Mr Findlay says, 'unfairly painted us lawyers as ambulance chasers and our clients as bleeding the NHS dry'.

Sir Liam might not have taken such a strong stance when drawing up his report, but it is clear that he has grown tired of clinical negligence litigation.

In the report, he argued that the process is too complex, too slow (cases can take up to four years to conclude), costly in legal fees, and unfair, as similar cases reach different outcomes.

He also cited the effect on the morale of NHS staff and on patients who are left dissatisfied by the lack of explanations and apologies.

Sir Liam proposed setting up an NHS-run, fast-track redress scheme that would investigate the incident, provide explanations to victims, and devise a package of care including compensation of up to 30,000 plus the cost of remediation and rehabilitation.

For neurologically impaired babies, the scheme provides for a managed care package and up to 50,000 initial payment for pain, suffering and loss of amenity, plus monthly payments totalling up to 100,000 each year and lump sums of up to 50,000 for adaptations and equipment.

After a first glance at the report, the charity Action for Victims of Medical Accidents (AVMA) was pleasantly surprised - 'It's a mission statement we could have written ourselves,' says chief executive Peter Walsh.

Many claimant solicitors agree.

Anne Winyard, head of clinical negligence at London firm Leigh Day & Co, says any changes that will reduce the risks of avoidable injury and provide a speedy investigation, explanation and apology must be welcomed.

'Everyone supports the aims of openness, learning from mistakes and honesty to patients,' she adds.

'What my clients wish most of all is that they had not been injured in the first place.

Money comes a very poor second to that, but many injured people desperately need financial and other help to try to rebuild their lives.'

Law Society President Peter Williamson says he supports reforms that will improve access to justice for victims of clinical negligence.

'We especially welcome proposals for more and earlier use of mediation, specialist training for judges, better reporting of adverse incidents, and the introduction of effective rehabilitation services for victims.'

Paul McNeil, a clinical negligence partner at City firm Field Fisher Waterhouse, says the report departs from the government's previous theme of cutting costs.

'The main thing for patients is that there should be a stop to medical accidents, and that appears to be the philosophy and raison d'tre behind the report - it is an attempt to stop the accidents from happening in the first place,' he says.

The report also proposes a duty of candour for NHS staff, and this has received a warm welcome.

John Kitchingman, head of clinical negligence at Manchester firm Pannone & Partners, agrees that the duty should 'go right from the top of the NHS to the bottom'.

However, he does question how this will work in practice: 'When was a doctor last brought before the General Medical Council for lacking in candour?'

In fact, this is just one question mark hanging over how the reforms will work in practice - as Mr Walsh realised when he took a closer look at the proposals.

His concerns were echoed by claimant solicitors at an AVMA conference last month, and top of the list was the independence of the proposed body that will run the redress scheme.

Ms Winyard would go so far as to say that any attempt to impose reform is 'doomed' if the body is not independent.

'Patients must feel confident that their concerns and their injuries have been considered objectively,' she says.

'They need realistic access to their own advisers whom they trust or they will feel crushed, for the second time, by the organisation which injured them in the first place - especially if that organisation is or is seen to be judge and jury in its own cause.'

Lawyers and AVMA maintain that it is vital that access to a solicitor be available from the moment an adverse incident occurs.

But the report gives little indication of what role solicitors will play in the new regime.

'It says that solicitors should come in at the offer stage and the department actually asks whether it should pay for legal advice then,' Mr Walsh says.

'But much more than that is needed.

Legal advice is needed to help people understand what the redress scheme is looking at and responding to, as well as helping them decide whether they should go to court instead.' The report says it is envisaged that a 'small amount of money' would be available to patients to take independent advice on any offer.

Mr Williamson says the Law Society backs the redress scheme on the basis that claimants will retain the right to take their case to court.

'The government says victims will keep the right to litigate,' he says.

'But it's not enough to simply say the right is there; it has to be made practically possible for them to go to court if they feel their claim has not been resolved or appropriately handled by the redress scheme.

We have to safeguard against people being refused legal aid or a fair hearing in court because an NHS redress system exists.'

However, some are optimistic.

Mr McNeil argues that the Department of Health (DoH) will fall foul of human rights legislation if it tries to bar access to advice.

'I think it is in the interests of the DoH to allow a significant amount of legal advice; if it has persuaded someone to accept a settlement or agreement without that advice, it would not stand up in court,' he says.

This would, in most cases, mean legal aid.

But again, the report gives little indication of what public funding should be available and actually calls on the Legal Services Commission to look into ways of reducing costs.

In fact, alarm bells were set ringing about across-the-board budgeting for the proposals at AVMA's conference.

'There were serious questions and a lot of concern that there were no firm answers forthcoming, particularly answers relating to the budgeting,' recalls Mr Walsh.

The 'take it or leave it' approach to NHS care in the report had already provoked fears that a two-tier system would emerge, for example, with victims of road traffic accidents, given the option of private care but victims of medical blunders stuck with the under-funded NHS.

Nicola Castle, a clinical negligence partner in the Manchester office of Alexander Harris, looked on with some disquiet when questions were asked about the likely cost of rehabilitation under the scheme.

'We were told that those costings had not been prepared,' she says.

'If the government goes away and eventually costs this out and decides it's more expensive than they originally thought, what will happen then?'

In fact, many solicitors are convinced that the scheme will end up costing a lot more than the government envisages.

'The assumption is that the overall impact will be cost neutral but we find that very hard to believe,' Mr Walsh says.

'We feel it will only be cost neutral if they restrict compensation and access to justice to incredible lengths.'

There are already concerns about the actual compensation on offer, particularly in relation to the value of the package in the case of brain-damaged babies, which many solicitors and the AVMA consider to be too low.

But Mr Walsh is disappointed that the DoH is using this situation to look at the care it offers such children in the first place.

'Why should their care be conditional on some sort of deal being reached on clinical negligence?' he demands.

'The DoH should be developing those services anyway.'

In terms of other claims, there is also the feeling that the 30,000 limit is too high and may overburden the scheme with claims.

'Low-value cases of about 5,000 take a disproportionate amount of time to investigate when you look at the amount of compensation you get,' says Mr Findlay.

'Anything that will streamline that has to be welcomed, but 30,000 is a lot of money and it will cover a lot of cases.'

Mr Williamson says: 'We urge the government to restrict the award of compensation under the NHS redress scheme to small claims.'

The AVMA had hoped that any redress scheme might be based on the Resolve pilot, which aimed to fast-track cases worth 15,000 or less.

Brian Raincock, who headed the scheme, said it was working well with that threshold and had the benefit of having an independent assessment process.

He is now seeking a meeting with government officials to find out why the pilot was disbanded.

'The redress system is unlikely to be there in any working form in the next three years, so what will happen in the meantime?' he says.

'Resolve could go on and people could learn from the experience and pass the benefit of that experience on to the redress scheme and I can't see why they won't allow that.'

Solicitors at the AVMA conference also called on the government to learn from the effects of the Woolf reforms and changes to the funding of clinical negligence cases through the Civil Procedure Rules - even if it means waiting for the relevant statistics.

This would mean liaison between the DoH and the Department for Constitutional Affairs, but Ms Castle is not optimistic about this: 'I'm not sure that the various [government] departments are even talking to each other.'

This would come as no surprise to Mr Kitchingman, who cites the Child Support Agency and the provision of criminal injuries compensation as two areas where the government has fallen down under similar circumstances.

'If you look at the government's record of running the show when it has taken on something in the administrative sphere that was previously dealt with judicially, it makes you wonder exactly how good the government is at running those functions,' he says.

Sir Liam's proposals have clearly provoked a mixed reaction among solicitors' and patients' groups.

While many says his heart is in the right place, the true practicalities of his vision will take years to emerge.

But Ms Castle says her greatest fear now is that solicitors, 'through sheer apathy', will fail to have their say before it is too late.

'There appears to be a split between people who are frightened it will take away their livelihood and others who feel we must prepare our responses or we are all idiots because reform is going to happen anyway,' she says.

'If we want to protect the interests of our clients, we have to get involved at an early stage.'