Curing medical ailments

Debate and consultation is vital before any move to reform the system of compensation for medical accidents, writes Rosamund Rhodes-Kemp

Last July the government announced sweeping reform of the system of compensation for victims of medical accidents.

This coincided with two events: the publication in May 2001 of the National Audit Office (NAO) figures for the escalating costs of these claims to the NHS, and the Kennedy report on the Bristol heart deaths, which recommended a number of reforms to the NHS and the compensation system.

A review committee was set up, chaired by the chief medical officer, and is expected to report in December 2002.

In the meantime, challenges have been made to the NAO figures which were not based on conventional insurance principles and were probably far too high.

A fast-track pilot scheme for small value claims has been completed and is being evaluated with a report expected shortly (see [2002] Gazette, 17 October, 1).

And the review committee has been investigating a number of alternatives to the present system.

After a period of consultation and debate what is now clear is that this is a more complex area to reform than originally envisaged.

No-fault compensation has been explored and although many argued that such a scheme would cost less and be quicker and cheaper to run the research has shown quite the reverse - similar systems in other countries have failed and been abandoned.

Badly handled NHS complaints actually increase the likelihood of litigation and the existing procedure dissuades many people, or they get so frustrated that they seek lawyers to help them.

The system needs urgent review and this is currently under way.

Alternative dispute resolution is an option, but the take-up rate for mediation and other forms of ADR is still low despite a tremendous amount of publicity and encouragement.

Not all cases are suitable for mediation - for example, if the claimant does not want a face-to-face meeting with those responsible for the injury and timing is crucial to achieve the best result.

But in many cases ADR is a viable alternative and should be actively encouraged.

The NHS Litigation Authority is a relatively new body and it is difficult to say whether it is leading to the cheaper, quicker resolution of claims.

Before reforming the system we should know whether a significant element is working.

The changes brought about by the civil procedure rules are only now showing in the statistics, and - if the court lists are anything to go by - the pre-action protocols and the spirit of openness and early settlements seem to be working.

A fast-track scheme was mooted when the government made its original announcement.

We are now in a far better position to say whether that would work, and how.

The idea of annual payments for maximum severity awards has been canvassed and has gathered support.

These would dramatically reduce the level of compensation outstanding at any one time.

These issues are all being considered by the review committee and debated in many circles in the legal profession and within government.

It is likely that the debate and consultation will lead to a greater understanding of the complexity of this area of law, which can only be a positive development prior to widespread reform of the system.

It is now likely that reform will include a number of changes - but probably not the headline-catching no-fault compensation.

Given developments over the last 18 months, it may be simply a question of making the existing system work better, introducing a fast-track process for the low claim end of the spectrum, and staging payments for maximum awards.

Many commentators have a view on claims against the NHS.

It is important whatever happens that the views of those who have been injured and those who represent them are taken into account.

Rosamund Rhodes-Kemp is the head of the clinical negligence department at London-based Russell Jones & Walker