Examination of the planned NHS Redress Scheme has created a varied response with claimant solicitors raising concerns regarding access to justice and defendant lawyers concerned that the number of complaints will increase.
The NHS Redress Bill was launched last November and in the 27 April 2006 edition of the Law Society Gazette the health minister, Jane Kennedy said the scheme would ensure “money is spent on compensating patients” rather than “on disproportionate legal costs.”
The government is particularly concerned about the relatively high costs of litigating lower-value cases. According to the chief medical officer’s 2003 consultation paper, Launching Amends, in the majority of cases under £45,000 legal costs actually exceed damages awarded to the patient. For these reasons the government aims to introduce in 2007 a mechanism for settling low value claims arising out of NHS treatment up to a maximum value of £20,000. The government maintains that litigation is not a good system for dealing with these types of clinical negligence claims and that cases take to long to settle and costs can be extortionate. The scheme is intended to be an alternative to litigation although it will not be compulsory, but by accepting an offer, patients will waive their rights to pursue a separate court claim.
Once an eligible claim has been identified it will be investigated by the NHS Litigation Authority (NHSLA), which will make an offer of settlement where it deems it appropriate. Under the current proposal the patient only has the right to seek advice to review an offer of damages once it has been made. For this advice the solicitor will be paid a flat fee. Those who refuse to participate in the scheme will be denied legal aid funding should they decide to proceed with a court claim instead. The scheme will be administrated by the NHSLA which opponents claim will effectively mean it will be acting as advocate, judge and jury.
Many claimant practitioners are opposed to the scheme and the opening shots have been fired in what will no doubt be a heated debate over the scheme. It is claimed that the scheme “will threaten patient’s ability to secure proper levels of compensation” and it has been described as “completely ludicrous ……… There’s no impartiality, no fairness.” These arguments appear to be particularly directed at the flat fee for advice on the offer put forward by the NHSLA. It is argued that because of the complexity of clinical negligence cases, it will be difficult for claimant lawyers to review an offer for settlement without conducting a full investigation into the facts, which would have to be undertaken for the fixed fee as proposed under the scheme.
Whilst the fixed fee aspect of the scheme is seen as a fault by claimant lawyers it is seem as a benefit to those acting for the NHS as the rate is unlikely to be attractive to claimant lawyers. It is feared however that the scheme may encourage patients to bring claims which would not otherwise be brought. The government’s own figures anticipate there could be anything between 2,000 and 19,000 extra clinical negligence claims in the first year of the scheme.
The Bill is currently being debated in the House of Lords; however there is a clear desire from the government to see the Bill become law. Before this happens the government will have to show that the scheme is workable and that it will deal with each case in a just and equitable manner. This will require further clarification as to how the NHSLA will manage the claims and what fixed fee will be allowed for the claimant‘s advice on the offer.