NHS seeking to cap negligence payouts

The government this week unveiled long-awaited plans to speed up and streamline clinical negligence claims - and cap the amount of money paid out by the NHS.

Solicitors have given cautious backing to a consultation paper issued by the chief medical officer, Sir Liam Donaldson, although they have warned that some proposals may undermine the importance of independent legal advice and leave victims at the mercy of the 'medical mafia'.

Sir Liam proposes a comprehensive NHS redress scheme encompassing investigations, rehabilitation and the provision of explanations, apologies and financial compensation.

Payments would be capped at 30,000, although brain-damaged children could get periodic sums of up to 100,000 each year.

Claimants would retain their right to go to court unless they accepted the package, although mediation would be the first step for cases outside the scheme, and the courts would be expected to use periodic payments in larger-value cases.

Awards would be based on the cost of NHS rather than private care.

The paper also suggested that documents gathered to investigate adverse events should not be subject to disclosure in court and said the Legal Services Commission should look at controlling claimants' costs in legally aided cases.

Sir Liam admitted that the changes would mean 'difficult judgements for lawyers' as they assessed whether the client would get more from the redress scheme rather than going to court, but insisted that patients would benefit from a speedier system that cut legal costs.

Law Society President Carolyn Kirby welcomed the proposals but urged the government to restrict the redress scheme to small claims.

'The government says victims will keep the right to litigate - but it is not enough to simply say the right is there,' she added.

'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.'

David Marshall, president of the Association of Personal Injury Lawyers, said: 'It is vital that patients are given the freedom to consider any offer with an independent lawyer who can help to ensure the patient receives the package which is most suitable.'

But leading clinical negligence solicitor Paul Balen, partner in Nottingham firm Freethcartwright, said proposals did not appear to safeguard independent legal advice.

'The system can only work if patients have trust in the person advising them,' he warned.

'This cannot come from any body within the NHS as it will still be part of the medical mafia that patients see as having let them down.'

The consultation paper said it is envisaged that a 'small amount of money' would be made available to patients to take independent advice on any offer.

By Paula Rohan