NHS Redress Bill
June 5, 2006
During a debate on the NHS Redress Bill, Nick Hurd calls for a genuinely independent process for dealing with minor clinical negligence cases rather than the in-house NHS system proposed by the Government.
Mr. Nick Hurd (Ruislip-Northwood) (Con): I rise to support the Bill in the form in which it has been sent to the House from the other place.
It is a particular pleasure to follow my hon. Friend the Member for Broxbourne (Mr. Walker) and the hon. Member for Worsley (Barbara Keeley), who, in their very different ways, brought home vividly through their constituency case studies some of the human problems faced by a minority of our constituents.
Unlike the hon. Member for Crawley (Laura Moffatt), I do not have personal experience of working in the NHS, but, like most hon. Members, I keep in close contact with my local hospitals. Last year, I had the opportunity to work-I use the word loosely-the night shift at Hillingdon hospital in the accident and emergency department on a Friday night. I said that I was there to “work”, but I shadowed the senior nurse through the course of that evening, which covered a period of peak demand for the department. When I left the next morning, I was astonished and impressed by the capacity of staff to cope with the pressure and the flow of decisions-hundreds of decisions were taken that night, and a huge number of decisions are taken throughout the system every day. In his report, “Making amends,” Sir Liam Donaldson, the chief medical officer, states that 50 medical decisions are taken every year on behalf of each person in this country. Given the increased complexity and pressure of the environment in which NHS staff work, it is not surprising, as the hon. Member for Crawley said, that mistakes are made.
I have been surprised by the scale of the problem. The trend in the debate has been to downplay the issue, but I hope that we have not given out the signal that we are complacent. Sir Liam Donaldson’s report informs us that the level of adverse effects during in-patient episodes in the UK runs at about 10 per cent., of which about 50 per cent. are preventable. On my maths, there are more than 400,000 preventable adverse effects a year, which, again using the figures in the report, cost about £1 billion a year in additional bed delays-those are big numbers. The report also points out that the health care sector has been historically tolerant of error, certainly compared with other industries that have had to be a great deal more robust on accountability for health and safety. I hope that we are not in danger of being complacent in the face of the challenge of driving down the scale of the problem.
The stress caused on both sides of the decisions that I have discussed is not in doubt. Anyone who read the report and the account of the mother whose child died as a result of a GP’s failure to diagnose meningitis could not fail to be moved by the thought of how much pain that incident caused on both sides.
I recently met my constituent, Jean McFarlane, a cancer patient who is in remission. She was seriously injured by an overdose of radiation, which left her semi-paralysed and in chronic pain for life. Such was her determination that that should not happen to anyone else, that she joined forces with other women who were injured at the same hospital to form a group called RAGE-Radiation Action Group Exposure. She said, “Sadly, we are now the forgotten hundreds, who get no help from anybody to maintain daily lives. Our injuries are unrecognised, or pushed under the carpet.” Her driving motivation is that what happened to her should not happen to anyone else.
Given the scale of the problem and the consequences for those who are unfortunate enough to suffer from it, we need to be sure that we have a complaints system that is seen to be effective and a system of redress that is seen to be fair. Those are surely hugely important pillars on which to build public confidence in the NHS. I suspect that they are underrated and underestimated within the system; the evidence certainly suggests that they are not as strong as we would wish.
The case for reform of the redress system is not seriously disputed. Although it is clear that progress has been made as a result of Lord Woolf’s recommendations and the actions of the NHS Litigation Authority since 1995, three trends are of particular concern, the first of which is the rising number of clinical negligence claims and the associated costs. The number of claims has risen from 392 in 1996-97 to more than 5,000 in 2004-05, and the associated costs have risen from £235 million in 1996-97 to more than £500 million in 2004-05. I am sure that no one in the House wants to go down the route of the USA, which spends a staggering 0.2 per cent. of its gross domestic product on medical litigation costs. That is a future that we must reject-not least because, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) said, every pound wasted in this area is a pound that could be redirected to front-line care.
The second trend that concerns me, and other hon. Members, is the length of time that it takes for claims to be settled. According to the NHS Litigation Authority, the average is 1.4 years, but the National Audit Office has suggested an average of five years for 2004-05. That is too long, as other hon. Members eloquently stated. During that time, there is a great degree of suffering on both sides involved in decisions.
The third trend that concerns me is the waste of time and money wrapped up in the following statistics:38 per cent. of cases are abandoned, 43 per cent. are settled out of court, and 75 per cent. of claims under £25,000 cost more to settle than the amount that is claimed in compensation.
All those factors conspire to create the wrong culture: defensive, obstinate, and confrontational. It becomes a game in which the patient holds few cards-truly a situation of David against Goliath, as my hon. Friend the Member for Broxbourne put it.I add my voice to the consensus that something needs to be done to speed up the process of claims andto generate a culture that is more conducive to transparency, co-operation and improvement.
We do not hear enough about the need to reduce the size of the Bill. Some £500 million of taxpayers’ money has been redirected. Primum non nocere, “First, dono harm”-I hesitate to introduce Latin into the Chamber-was the motto of Florence Nightingale. I am afraid that we have not heard enough about that this afternoon. For example, how successful has the National Patient Safety Agency been since it was set up in 2001 in helping to reduce the size of the problem,in learning lessons and in identifying risks and mechanisms to track progress with solutions?
I understand that reducing costs is not the main driver of the Bill. Its aim is to provide a simpler means of obtaining compensation in lower value cases. Costs might rise depending on the various assumptions that might be made about future claims. I am happy to applaud that objective, but the test of any new legislation is to ask what it will add to what is already there. What gives us reason to think that it will succeed in its objectives, particularly when one of those objectives is to change the culture? We know how hard that is. How can we be confident about it, particularly given that there is currently nothing to stop the NHS from offering compensation, remedial care, an explanation or apology? That is within its power today. How can we be sure that the Bill will be a turning point in changing that culture so that those options are used more? The frank answer is that it is hard to say because, as the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, there is so little detail. That point is also made by the Law Society, the British Medical Association and the Constitutional Affairs Committee.
We are told that the NHS Litigation Authority will manage the scheme, so why is it not named in the Bill? The bottom line is that it will still need to be established regardless of whether injuries have been caused by negligence, but what criteria will be used? Who will decide or advise on which cases are eligible? How will proceedings start? Will they be independent of the complaints process? Why was the £20,000 limit chosen? What does it include? Does it include only legal costs or does it include remedial costs? Exactly what type of independent advice will patients and families be entitled to?
Even in the vacuum of detail in which we are asked to debate this afternoon, one real concern stands out: the need for independence and for the process to be seen to be genuinely independent, in terms of judgments being made and of the access that patients will have to independent opinion, not just at the end of the process. The Government are, in effect, bringing everything in-house into the hands of an agency the main purpose of which is to defend the NHS. The model is fatally flawed, because it will remove trust and confidence in that process. If I were a patient who had gone through some of the experiences that hon. Members have described, and I was told that that the NHS was to be the judge and jury in my case, I would not enter that process with confidence or trust.
How will the new system change the culture? Currently, the clearest way of changing culture and raising accountability is to throw a harsh spotlight on matters from outside to break down the culture of stubborn defensiveness that seems to pervade the NHS, as comes through in the evidence from Action against Medical Accidents. Underlying this is a general feeling that the Government know best and that people should take what they are given. That is why I supported our amendment, which seemed to be a victory for common sense. We should separate the redress process into two parts: find the facts and find the fault. An independent redress system that is overseen by the Healthcare Commission is essential for building confidence. The hon. Member for Crawley mentioned the importance of defining the status, training and legal skills of independent investigators.
It is rich for the Government to complain about cost. The figure bandied around for the cost of this scheme is about £14.5 million at the bottom end of the range. It is ironic that today, in Committee Room 15, the Public Accounts Committee is investigating the shambles that is the Paddington health campus project, which the Department of Health failed to supervise over five years, with a cost to the taxpayer of £14.5 million and an opportunity cost that runs into hundreds of millions of pounds. Given that kind of cavalier attitude to taxpayers’ money, it is ridiculous say that the price of a genuinely independent system that will generate confidence is too high at £14.5 million. Only by building a system and a model that can inspire confidence in the independence of decision making can the Government truly say that this Bill is for and about patients.
OTHER CONTRIBUTIONS TO THE DEBATE
Mr. Nick Hurd (Ruislip-Northwood) (Con): I understand the point that the Secretary of State makes about the upper limit, but can she tell us what proportion of cases fall within the £20,000 limit?
Ms Hewitt: As I said a moment ago, the majority of clinical negligence cases that are settled involve compensation of less of £20,000. In the past couple of years, in slightly more than half of the cases settled for between £10,000 and £20,000, the legal costs exceeded the damages. For cases settled below £10,000, legal costs exceed compensation in some 90 per cent. of cases. That is not a satisfactory situation.
Mr. Hurd: I would be interested to know why the hon. Lady thinks so, given her experience. It is not clear that such an embedded culture can be changed by the Bill.
Laura Moffatt: It is important to provide a fast, fair scheme that is quick to offer an apology and an explanation. If the original event is not dealt with quickly or properly, the aggrieved patient or family member is often more unhappy about the poor process than the event itself. It is therefore right to start to set things in motion and ensure that the system is fair to all. As much as I love solicitors, it is not a marvellous idea for the NHS to spend a great deal of hard-earned taxpayers’ money on them. The public are aware that accidents happen, so if someone requires a reasonable amount of compensation-and not a huge sum-it is far better that that money goes straight to them without the NHS spending very much on solicitors. That is another reason why the public generally consent to what the Bill hopes to achieve.
Mr. Hurd: If an offer is rejected, will the patient have the right of appeal, or will his or her only destination at that point be the courts?
Andy Burnham: It is not our intention to allow an appeal. We want the scheme to work properly to provide speedy redress to the patient. The patient will not lose their right to take the matter further, however. The right to refer the matter to the health service ombudsman is enshrined in the Bill, and people will obviously retain their legal right to take further action. In our view, it would be too bureaucratic to keep reviewing and appealing the decisions, and that is not the intention behind the scheme.