Health check

Cutting the cost of clinical negligence should never be to the detriment of the injured patient. Though there is clear need in today's financial climate to save money, it should never be at the expense of access to justice for victims of medical errors whose lives have been shattered.

Redress for blunders during treatment is now a growing issue in all jurisdictions in the UK. In England and Wales, the Ministry of Justice has recently announced that it plans to push ahead with its proposals to restrict the operation of conditional fee agreements (CFAs). It has also suggested removing legal aid for clinical negligence claims.

People with the most serious of injuries face being denied access to justice as a result. Some of the most vulnerable members of our society, such as babies who are born with brain damage because of medical mistakes, are among those patients seeking redress from the NHS. In Wales, proposals have been agreed to allow the NHS to investigate its own mistakes and decide whether or not it was at fault; something we consider a serious potential conflict of interest as any investigation into potential negligence must be independent from the body under scrutiny.

In Scotland, consideration is being given to a 'no fault' scheme which could lead to injured patients not having to prove negligence to gain compensation. Though the proposals are at an early stage, the concept is not new. Whenever it has been considered before, difficulties have arisen with the length of time it takes to resolve causation. And, whatever savings it may generate, they would be unlikely to cover the cost of the additional compensation required unless levels of compensation were reduced.

But, while the legal landscape is changing, there is a worrying backdrop of an apparent rise in patient injuries. According to the latest annual report by the National Patient Safety Agency for 2009/10, there were 486,449 incidents where a patient was harmed during treatment from October 2008 to March 2009 and 536,010 such incidents between April 2009 and September 2009. This appears to be in a sharp contrast to the number of claims actually brought by patients during a similar period. According to figures from the government's Compensation Recovery Unit (CRU) during 2008/09 there were fewer than 10,000 clinical negligence claims.

People have a right to bodily integrity and this is protected by law. So, instead of measures being introduced which could prevent access to justice, what is needed is for the existing claims process to be continually improved, to be made more efficient, and, most important of all, for the negligence which causes needless injury in the first place to be prevented.

Only the NHS is able to take measures to cut its own negligence. But we believe it is only right for claimant lawyers and the authorities to constantly work together to reform the systems in place to create savings which do not adversely affect vulnerable patients.

That is why APIL, in its latest endeavor in this vein, approached the MoJ with a plan of how clinical negligence claims could be streamlined to cut costs and deliver speedier access to justice.

Costs will always be significant in cases which do not resolve early, where the defendant contests liability or quantum issues, where poor points are taken or where the case proceeds to trial. The key to cutting costs is behaviour. If incidents are investigated properly, then earlier decisions on

liability can be taken. Where liability is admitted early, significant costs can be saved. Where liability is not in dispute, sensible offers can reduce the costs inherent in preparing for a quantum trial. Too many cases settle too late in the day.

It is important therefore that any changes to the system focus on driving the right behaviours to save on costs and help injured claimants receive their compensation sooner, and with less stress. Some simple solutions which would save costs, while still preserving access to justice, are:

Develop a streamlined process for straightforward, lower-value clinical negligence claims

We have said for a long time that something must be done about the limited access to justice for patients with lower-value clinical negligence cases. The Legal Services Commission funding criteria denies funding to claims where the value of the damages is less than £10,000, or where the case does not meet cost-benefit criteria. Potential claimants with meritorious, but low-value, claims can be turned away from specialist panel firms as their cases are uneconomic to run on a conditional fee basis where proportionality is always an issue.

So, there is real merit in exploring a streamlined process to promote quick and fair resolution for straightforwardclinical negligence cases which wouldcreate swift access to justice at a fixed and proportionate cost.

It is not just APIL saying this. Lord Young called for a streamlined fast-track process in his report, Common Sense, Common Safety. Interestingly, the NHSLA recognises this as an area where potential savings could be used to pay compensation to those patients who currently miss out on obtaining access to justice. APIL looks forward to working with the NHSLA, the MoJ and others with a view to exploring how such a scheme could operate.

Introduce the industry-agreed revised draft of the pre-action protocol for the resolution of clinical disputes

A working party set up last year by the Civil Justice Council and the Law Society and comprising members of the Clinical Disputes Forum produced a revised draft of the pre-action protocol for the resolution of clinical disputes. This group worked very well, bringing together representatives from the claimant and defendant communities to reach an industry-agreed consensus on sensible and pragmatic changes to the current protocol.

The proposals outline how to reduce areas for potential disputes and to cut costs. It has universal support within the clinical negligence world and should be introduced in full as soon as possible.

Among the changes it suggests, the most significant is the introduction of a new early notification letter to give defendants more time to investigate claims and a greater opportunity to admit liability early. Another key change is the introduction of a duty on the parties to consider rehabilitation, to help give the injured patient earlier support.

Other proposals aim to resolve areas of dispute over the disclosure of medical records and other documents. By prescribing more clearly what the duties of all the parties are, the duplication of efforts will be reduced and costs and time saved.

Develop a best practice guide with the NHSLA and other relevant parties

APIL has met with the NHSLA and its panel firms, on a number of occasions, to share concerns about blockages in the system. One idea mooted has been the possible development of a best practice guide. With the introduction of claims management companies selling claims to non-specialist firms, there is an increasing need for such a publication. Both the NHSLA and APIL have agreed that this warrants further consideration.

Adapt the personal injury multi-track code voluntary pilot for higher-value claims

The multi-track code voluntary pilot for higher-value clinical negligence claims was developed following discussions between APIL, the Forum of Insurance Lawyers (FOIL), the Motor Insurers' Bureau (MIB), and insurers RBSI, AXA, Zurich and NUI. It is a code of practice which aims to help resolve claims of a value exceeding £250,000.

The pilot aims to settle cases by narrowing the issues in dispute before settlement or trial. The key objective is to resolve liability as quickly as possible, help claimants to gain access to rehabilitation when appropriate and resolve their claims in a cost-effective manner.

It was launched in July 2008, but, for historical reasons, clinical negligence claims were never included. Early feedback is positive though, and there is broad agreement to consider an extension of it to cover clinical negligence.

Regulated, staged success fees

Recoverable success fees have played an intrinsic role in providing access to justice in the absence of legal aid, which is why we say the MoJ is wrong to push ahead with its plans to abolish them. Before an announcement was made about the response to the consultation on civil litigation funding and costs, we submitted that recoverable success fees should be regulated in clinical negligence cases. Staged success fees would have offered clear incentives to defendants to settle cases early, and fixing those percentages would have given defendants certainty and saved costs overall.

Open access

Potentially restricting access to justice will never be a plausible way to reduce costs because it completely undermines some of the most fundamental principles of our society. Moreover, it offers nothing to address the overriding objective to prevent needless injuries occurring in the first place. It also places an increased burden on the state which has to foot the bill for the treatment of injuries to people who may have missed out on being provided proper redress by the wrongdoer.

For patients to have any faith in the legal system, investigations must always be independent from the body accused of wrongdoing. And injured people should have access to full and fair compensation to help put their lives back together following an injury.

Only by claimant and defendant representatives continually working together will we have a more cost-efficient system which also offers the widest possible access to justice. In striving for this, it is imperative that the needs of patients are at the heart of any changes made.

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