Yvonne Agnew, Clinical Negligence Practitioner and Partner at leading south Wales law firm, Leo Abse & Cohen is on the Legal Advice working group involved in making proposals to the Welsh Assembly Government about the way in which legal advice will be provided within the NHS Redress Measure. Here she looks in detail at what the Redress Bill will provide and asks, can we, in Wales, at last begin to hope for more open, patient orientated system of redress when things go wrong with our care?
"In November 2006 the NHS Redress Act was passed in England. The Act followed publication by the Chief Medical Officer of a document named "Making Amends" which is generally regarded as a thorough and far reaching review of the handling of medical negligence claims within the NHS.
"In England, little or no progress has been made towards any real change. Here in Wales, however, the first legislation to have been passed by the Welsh Assembly Government, successfully completed it's passage on the 6th May 2008. It will be put before the HM the Queen at the July meeting of the Privy Council at which point it will formally become law in Wales. The legislation allows Welsh Ministers to set out in Regulations arrangements for the handling of lower value clinical negligence claims, without the need for legal action. It forms part of a package of reforms being developed by the Welsh Assembly Governments Putting Things Right project to address the way in which the NHS handles things that go wrong, including complaints, possible claims and issues arising from patient safety incidents and so improving patient experience in Wales.
"The philosophy behind the Measure is a sound one, with the underlying principle being that whenever concerns are raised about treatment and care, whether that is through a complaint, claim or patient safety incident, those involved can expect to be dealt with openly and honestly, receive a thorough and appropriate investigation; a prompt acknowledgement and detailed response and clarity about the next steps together with an appropriate option for resolution.
"At the present time the NHS Redress (Wales) Measure concentrates on developing arrangements that will apply to secondary care, i.e. hospital treatment. The NHS Redress Measure is however capable of including primary care practitioners within arrangements. It is anticipated that before any decision is taken to expand the redress arrangements to include primary care a full evaluation will be conducted on the operation of arrangements in the secondary care setting.
"There has, of course, long existed a complaints procedure which could be followed by patients unhappy with their hospital care. There is no doubt, however, that the current system is perceived to be complex and inconsistent and the speed and efficiency of the delivery of the service varies significantly between Trusts. There is also no doubt that it is perceived that the current system is costly both in terms of legal fees and the diversion of staff from patient care and undoubtedly any protracted investigation under the complaints procedure is going to have an adverse effect upon NHS staff morale not to mention public confidence in the system.
"More importantly, however, it has finally been acknowledged that often what patients most want, following the reporting of an adverse incident, is an explanation as to what precisely has gone wrong but more particularly, an assurance that action has been taken to prevent the same mistakes affecting others. If the proposals are to work we would be looking at a whole new culture within the NHS namely a culture of a desire to put things right and to learn from their mistakes. This will require openness and honesty from the NHS in terms of advising a patient when they know things have gone wrong (often before the patient would realise this to be the case) and to offer them at the outset a speedy, detailed, impartial review of their care.
"The initial investigation process would be conducted internally, by the hospital, as indeed is the current situation but it would be conducted along agreed lines and within agreed time scales so that, in effect, each complaint/adverse incident would be investigated in an identical manner. The patient also would be more aware of the investigation and indeed would be offered help and support from various agencies at this stage.
"At the conclusion of the investigation stage the Trust will be in a position to provide a detailed report outlining their findings and discuss with the patient the best way forward. The Trust may at this stage b e able to offer the patient some form of appropriate redress with proposals including such things as an apology, financial compensation or a package of care. It may be that further investigations are required, the patient however should be involved in such decisions.
"At this stage, clearly, the patient may desire some legal input in terms of advising whether or not the investigating findings are appropriate and indeed advice and assistance in terms of whether an offer of settlement is the best for them. It is suggested that this legal advice will be provided by specialist clinical negligence solicitors, with the Measure proposing that such advice is provided free to the patient.
"In short, therefore, the rationality behind the measure is to investigate patients concerns, to investigate them early but, more particularly, to investigate them well. The patient is to be offered both legal and advocacy support to assist them through the process which will be offered by those with particular skills in this area. This should be both empowering to the patient and prevent them feeling the need to resort to protracted legal proceedings or indeed any form of Court action to obtain the redress they seeks.
"It should be said that clearly not all patients complaints or concerns will be suitable for the type of scheme envisaged but certainly there are a very large number of patients each year, who would have limited claims to compensation who would benefit significantly from these proposals
"The reason I believe that the changes envisaged are long overdue arises from my own experiences of advising clients who had emerged from the existing protracted and confusing complaints process .They are more often than not none the wiser as to what the health authority was actually saying about their complaint despite hefty documentation having been produced and often despite face to face meetings with the trust representatives. This is why, I for one, very much look forward to witnessing the full implementation of the NHS Redress (Wales) Measure 2008."
The real life scenarios
In one particularly memorable case, my client, an intelligent and articulate gentleman, had followed the complaints process diligently through all of its various stages and emerged triumphant (if somewhat jaded) at the end with a damming report from the Ombudsman about his care. The immediate issue facing me was that the process had taken so long that the Limitation date for his claim had in fact expired! Fortunately in this case common sense prevailed and the point was not pursued by the defendants but we cannot continue with a system that even the most determined of patients could not complete within three years.
The need for standardisation and more particularly simplification of the existing process was again brought home to me recently when I was approached by a delightful lady who had again emerged battle weary and confused from a complaints process that had taken two and a half years to reach a frankly wholly unsatisfactory conclusion. Less than six months on we await details of the final settlement that she so obviously deserved and so very nearly just gave up on so weighed down was she in the existing processes. Patients deserve a complaints process that is speedy and straightforward but most importantly open and honest. Hopefully in Wales at least we are edging ever closer to this being the case.
Leo Abse & Cohen employs 135 members of staff, including 12 partners, at its offices in Cardiff, Newport and Swansea and offers legal advice to a broad range of organisations and private clients. For further information Yvonne can be contacted on 02920 383252.