On 1st April 2011, NHS Wales brought in new regulations for dealing with complaints against NHS treatment providers in the Principality. The new regulations include an NHS redress scheme for the resolution of low-value clinical negligence claims, defined as those under £25,000. Essentially, this is an extension of the NHS complaints process, which may in certain circumstances provide compensation for patients whose complaints are upheld without the requirement of a separate clinical negligence claim.
The Ministry of Justice recently announced plans to extend the current MOJ Portal scheme (which is used for road traffic collisions where liability is admitted and the value is worth less than £10,000) to non-complex clinical negligence cases with a value of less than £25,000. With calls for a simpler method of handling low-value, non-complex clinical negligence cases, it is useful to consider whether Welsh NHS redress scheme may also be of practical application in England.
Complaints and the NHS redress scheme
The Welsh regulations were designed in an attempt to encourage a more open and supportive culture in relation to the NHS’ response to complaints, moving away from the previously perceived defensive response of some hospitals. The legislation also aimed to provide a more consistent approach in responding to complaints and to ultimately save money on legal costs in defending clinical negligence claims. The advantage of this approach is that it may avoid the expense and inconvenience of legal proceedings in straightforward cases, where the negligence is clear and unlikely to be defended.
Complaints under the scheme can be made in writing, electronically (i.e. by email) or verbally and must be made within twelve months of the incident the patient is complaining about. In extraordinary circumstances, where there is a good reason the complaint has not been made earlier, the complaint can be made up to three years following the incident in question, with the approval of the NHS Trust. The Complaints and Redress scheme is an alternative method of resolving a patient’s dispute with the hospital, and so it cannot be used at the same time as legal proceedings for a clinical negligence claim.
Once a patient has made a complaint about treatment, this should then be fully investigated by the NHS Trust in question who should respond to the complaint and ultimately consider whether the patient’s condition has been adversely affected by the actions of the healthcare provider.
If the NHS Trust, following the investigation, concludes that there has been negligent treatment, they must investigate whether there may be a liability for compensation and if so, the complaint is automatically entered into the NHS redress scheme. Redress, if offered, should comprise:
- An offer of compensation and/or the cost of any remedial treatment required;
- An explanation of what went wrong;
- An apology;
- An action plan to prevent the same thing happening again to someone else.
The NHS redress scheme has an upper limit of £25,000 and excludes complex and fatal claims. Any payment made under the NHS redress scheme will be made in full and final settlement of the claim, meaning a patient would be unable to bring a separate clinical negligence claim at a later date.
If a complaint is entered into the scheme, the patient has the right to obtain free legal advice (at a fixed fee payable by the NHS Trust) on the valuation of any compensation awarded or the decision not to offer any compensation. The scheme allows for the limitation period (i.e. the three-year time period by which clinical negligence proceedings must be brought) to be suspended while the application for Redress is being considered. This is designed to enable the patient to consider the Redress scheme before the limitation period starts to run again. However, it should be borne in mind that the longer the period since the incident in question, the harder it is to investigate a clinical negligence claim, since it is often more difficult to obtain accurate witness testimony and medical evidence.
If a patient chooses to obtain legal advice and assistance through the Redress scheme (and in order for the NHS Trust to agree to fund this advice), the solicitors instructed must be able to demonstrate a specialism in clinical negligence matters (ie through membership of a specialist clinical negligence panel) and must agree to undertake the work for a fixed fee, payable by the NHS Trust. If any expert opinion is necessary, a joint expert should be appointed to advise both the patient and the Trust.
Patient Advice and Liaison Service
There are agencies who may be able to assist a patient through the Welsh NHS Complaints process and the scheme. The Patient Advice and Liaison Service (PALS), an independent service available in all hospitals in England andWales, is able to provide advice and assistance in making a claim. Patients who want to make a complaint can also refer to the Citizens Advice Bureau.
One year on from the legislation coming into force, it is apparent that the NHS redress scheme is being used, with several Welsh NHS Trusts actively encouraging patients to consider the complaints process prior to obtaining legal advice and pursuing a clinical negligence claim. However, there has been criticism of the scheme, with concerns that it still essentially involves NHS Trusts investigating complaints against themselves, possibly representing a conflict of interest. There are also concerns surrounding the practical support given to patients making a complaint, given that they are able to access independent legal advice only from those solicitors and medical experts willing to accept a fixed fee for their assistance.
Although there have been calls to extend the complaints and Redress scheme to England, no plans or proposals have yet been announced and it appears that, although initial indications are that the scheme is working in Wales, it will be some time before enough cases have been dealt with for an empirical study to establish whether the scheme has truly been a success and accomplished the objectives it set out to achieve.
For more information, contact our Clinical Negligence department.