Scheme

Introduction

In the time that has elapsed since the initial pre -consultation paper dealing with proposals for fixed recoverable costs, there has been:

  • an improvement in the awareness of staff and the implications for staffing levels of the impact of mistakes having been made;
  • a greater acceptance of the duty of candour and the starting of a fostering of a “no blame culture”;
  • a review of the function of the NHS Litigation Authority (now NHS Resolution);
  • the introduction of the Health Care Safety Investigation Bill;
  • genuine communication with those representing injured patients with the intention to improve patient safety in the short and long term.

What Lies Ahead?

  1. The above has led to the creation of a better framework for accountability of staff both medical and administrative within the NHS. Private health care providers will need to follow suit. Opportunities should now exist for SCIL and AvMA to be consulted regularly on patient safety issues by the NHS. Consultation with those representing patients injured through mistakes and not just data analysis from those employed to defend the NHS in litigation will provide a more complete view of the issues facing the NHS.
  2. “Black box” type investigations should take place. The Health Care Safety Investigation Board (HSIB) has been set up to deal with this type of investigation. However, SCIL proposes that “Trust patient safety champions“, should be appointed in each Trust and/or “patient safety champions”, where appointed by alternative healthcare providers, to enable investigation of a significantly larger number of areas of concern beyond the 30 or so issues that the HSIB have been scheduled to undertake on an annual basis.
  3. It is envisaged that the “safety champions“, will be created by new consultant appointments or appointments of individuals in other specialisms at an equivalent Managerial/Director grade across the country. This will need investment by the Department of Health in increased staffing, improvement in a learning culture and a more rapid assessment of defensibility of potential claims. Staff morale should improve and staff will not be diverted away from frontline services as much due to earlier proper assessment as defensibility of cases. The holding of the position of “safety champion” will be time limited to ensure that professional expert witnesses are not inadvertently created without them having an ongoing professional practice and also to ensure a further method of dissemination of learning from past incidents. Trusts should notify HSIB of the identity of their PSC and HSIB could run mandatory cases for PSCS.
  4. The ‘safety champions’ will need to be given autonomy to make decisions. They should report to NHSR to advise on risk and potential legal action, thereby reducing delay caused by rigorously defending claims that can achieve early settlement. It should also be within the remit of a safety champion to refer matters to the Care Quality Commission for any further action the CQC considers necessary.
  5. ‘Safety Champions should request cases from clinical negligence practitioners in order to consider lessons learned. They should also have an obligation to write to NHSR/alternative healthcare providers to confirm lessons learned. Keep a record of repeat offenders, training and monitoring etc. Patient safety should be added to Board Agendas and ‘safety champions’ should also attend Board Meetings on a quarterly basis in order to provide an update to Trustees on patient safety.
  6. Although the ‘duty of candour’ is in place, it is not uniformly being implemented by Trusts. If there is no candour, if medical accidents occur, it will impact on learning. The NHS will save significant costs when medical accidents are shared and lessons are learned; negligent mistakes are admitted early and there is a willingness to enter into meaningful discussions to settle claims early. ‘Safety champions’ would ensure that this is achieved, as the current system is failing and costing the NHS millions.
  7. Patient safety is the most important factor. When things go wrong, resulting in negligence, patients should be able to have a right of redress. On that basis, claims in themselves are not entirely a negative factor but are also learning opportunities. A more robust complaints system would help to produce solid learning opportunities and may head off claims and/or provide evidence to foreshorten the claims process. ‘Safety champions’ ’within Trusts and/or ‘safety champions, where appointed by alternative healthcare providers’, are the suggested way to deliver that.
  8. Concerns have been expressed as to the financial impact of clinical negligence litigation. Some of these concerns are unwarranted and ill-informed but some are possibly justifiable. There is a perception that litigation is expensive and longwinded. How have these perceptions arisen? Claimant’s representatives argue that those representing the Defendants operate a system of ‘deny, delay and defend’. Those representing Defendants allege that Claimant solicitors make far too much money from clinical negligence litigation and the longer court cases go on, the more money Claimant lawyers make. It is understood that the NHSR panel of solicitors are paid on a “stage reached” basis which means that more costs are paid to defendant solicitors the longer cases go on.
  9. It should be noted that real cost saving will not arise out of any proposed scheme, but in the behaviour underlying the scheme. 
  10. Some decisions have been taken in the past which have led to unforeseen consequences such as the removal of legal aid to a very large extent and its replacement by conditional fee agreements with success fees and ‘after the event insurance’. Both sides question the capabilities and experience of those representing the others indicating that more experienced practitioners’ progress cases more speedily and at reduced cost than inexperienced practitioners.
  11. Accreditation in some shape or form would remove a significant amount of time and expense for both parties. Those representing Claimants indicate that NHSR have very few senior solicitors. Unqualified or very junior staff at NHSR tend to take unjustifiable positions (if ‘patient safety champions’ had reported early on, would such unjustifiable positions have been taken or maintained?).

Underlying principles

  • Must ensure that patient safety is paramount. On that basis where negligent treatment occurs, lessons MUST be learned. The ‘patient safety champions’ must be made aware of all pending claims for damages in which negligence has been alleged, against their Trust and/or alternative health provider where a ‘patient safety champion’ is appointed;
  • Must provide real access to justice and therefore learning points for patient safety which in turn should reduce the number of claims;
  • Must provide a streamlined claims process;
  • Must be GDPR compliant;
  • We need to retain legal specialism in this area of litigation, even though cases are likely to be pursued by more junior Fee Earners, to retain quality in the system - without that, the scheme won’t work and therefore cost savings will be lost;
  • The scheme is triggered upon the Claimant delivering to the Defendant a Letter of Intention to investigate a claim in which the Claimant gives notice that the potential value would fall within the scheme’s maximum value of damages;
  • If, on further investigation, it becomes apparent to the Claimant that the value exceeds the maximum permitted under the scheme, the Claimant must give written notice to the Defendant and with full explanation of reasons for the change in estimated valuation. There must be a full admission of liability, i.e. breach of duty and causation, to remain in the scheme;
  • Where Defendants following investigation consider the value of the claim exceeds the scheme must give written notice to the Claimant;
  • There is a need to retain the quality and independence of expert medical evidence in the scheme. In addition, SCIL propose that the Government should set up a panel of accredited experts agreed by AvMA and DOH/NHSR where expert fees are to be appropriate to the case;
  • Only for cases where one expert report is required to deal with breach of duty, causation and quantum;
  • There must be sanctions for poor Defendant conduct, i.e. cases then fall outside of the scheme and if it does fall out of the scheme the normal rules of proportionality shall not apply to that case subsequently;
  • For claims valued at up to £25,000;
  • There has to be an automatic limitation waiver/standstill provision for all cases in the scheme;
  • AvMA to monitor the operation of the scheme to provide independent overview.

Exceptions:

  • Stillbirths
  • All fatalities
  • Child cases
  • Cases with Litigation Friends including Claimants with mental capacity issues
  • Claims involving multiple Defendants
  • Claims involving foreign nationals, (on a discretionary basis) and British nationals where translation is required, due to language difficulties; translation of documents and/or accessing medical records outside the UK

There must be opportunities for early admissions as well as sanctions for unjustifiable delay in settling or progressing a case.

Admissions

There are three opportunities for the Defendant to admit full liability:

(a)       when the records are requested

(b)       following Letter of intent to investigate a claim

(c)       following Letter of Claim.

The Scheme Itself:

Upon receipt of the application the potential Defendant must:

  1. Acknowledge receipt within 14 days– failure to do so will result in the case falling outside of the scheme;
  2. Provide a complete set of the requested records in a standardised form, including radiology in a form that can be readily opened and copied, within 40 days – failure to comply with this timescale will result in the case falling outside of the scheme;
  3. Check if there is a SUI report or duty of candour report in relation to the matter – if there is, it must be disclosed with the medical records i.e. within 40 days, and the potential claim notified immediately to the NHSR and/or professional indemnity insurer – failure to do so will result in the claim falling outside of the scheme;
  4. If a SUI and/or duty of candour report is in the process of being prepared, it must be completed and made available within 56 days– failure to do so will result in the claim falling outside of the scheme;  
  5. The Defendant must immediately notify NHSR and/or their professional indemnity insurer so that they can consider whether any admissions should be made at this stage – failure to do so will result in the matter falling outside of the scheme.  

Letter of Intention to be sent within 28 days of complete copy records having been received and sorted and paginated and considered by the Claimant’s solicitor. The letter must re-state the claim under investigation (including stating any draft allegations based on the records/documents obtained to date) and that this is an opportunity for the Defendant to admit liability before expert costs are incurred. If the Defendant requires copy records to consider the claim, they must pay for the copies.

Upon receipt of the Letter of Intention, the potential Defendant must:

  1. Acknowledge receipt within 14 days and request any records they require – failure to do so will result in the case falling outside of the scheme;
  2. Provide a detailed response within 4 months – failure to do so will result in the case falling outside of the scheme;
  3. Ensure that a copy of each Letter of Intention to investigate a claim is provided to the ‘safety champion’ within 14 days of its receipt by the potential Defendant

    Letter of Claim
    should be served within 18 months of intention to investigate a claim sent to Trust and NHSR, specifying the factual background, allegations and that it is supported by independent expert evidence together with discipline of expert,. Where independent expert evidence is not relied on the Claimant must indicate why not, e.g. it is based upon the records or a SUI report, and certified by an AvMA or Law Society Clinical Negligence Panel member in the following suggested wording:

“I certify that this Letter of Claim is based upon expert evidence/the SUI report/the medical records/other (delete as appropriate)”.

  • In the event that the Defendant relies on evidence from a clinician, they must confirm whether they have and confirm the name of the clinician.
  • There is to be no early disclosure of the Claimant’s expert report as that is likely to lead to increased litigation behaviour and therefore costs and the scheme has to be kept very simple in order for it to work.
  • A fully reasoned Response to the Letter of Claim must be provided within 98 days of its receipt by the potential Defendant - failure to do so will result in the case falling outside of the scheme.
  • There is provision for one independent expert report per party who should not be a single joint expert.
  • The strict timetable for both parties to respond is deliberate as it is only with a simple and therefore timely scheme that this can work. However parties can agree an extension of 28 days.
  • No full admission of liability, i.e. breach of duty and causation, will automatically result in the case falling out of the scheme.
  • Settlement of the claim and payment of compensation will be by negotiation between the parties or in default of which via an arbitration scheme set up by PIBA with effectively junior barristers on a panel approved by AvMA and DOH arbitrating but doing the same work as if they were offering an advice on quantum.
  • Upon settlement of the claim and/or payment of any compensation, the Defendant will notify its ‘safety Champion’ of such a stage and/or outcome being reached.
  • The ‘safety Champion’ shall, within 56 days of payment of any damages under the scheme, write to the Claimant setting out what lessons have been learned by the Defendant and any action taken or to be taken arising out of the subject matter of the claim and to write a letter of apology.

Clear distinctions must be made when reference is made to costs. ‘Costs’ are often used in a very broad fashion to define expenses in progressing a case but there are very often many subsections of costs that are largely out of the control of the successful parties’ lawyers. These include such things as:

  • Fixed legal costs plus VAT
  • Medical record fees
  • Pagination costs
  • Expert fee(s)

Inquest costs if applicable [NB. not needed if all fatal claims are excluded – a fixed fee of XXXX number of days for the hearing or the actual costs as per case law?]

Probate fees if applicable [NB. as above not needed if all fatal claims excluded?]

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