Group 1 (G09) - The Scottish Government

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No-Fault Compensation Review Group

Group Discussions - 17 September 2009

The members split into four discussion groups to consider the questions in

MRG Paper 6. The groups were largely self-selected and the discussions noted within each group are therefore not fully representative of the full

Working Group.

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No-Fault Compensation Review Group

Group 1

(G09)

– Note of discussion (17 September 2009)

To consider:

Question:

What should a compensation system be trying to achieve?

(Bullet 1 on MRG Paper 6)

At a minimum a new system should aim to produce faster, less stressful access to compensation. However we should aspire for more than that. The new system should complement patient safety, and create a culture of openness.

Patients need to have clarity about the process that went wrong. They need to understand and know what happened.

While financial compensation is important for some patients, the majority are looking for an apology. The current complaints system is failing these patients at the moment as there needs to be an opportunity to be able to look at what happened and what went wrong.

Current Problems:

Patients often do not have the money for litigation

Patients feel that the Ombudsman has “no teeth”

Some patients and relatives feel that medical records do not reflect their experience.

In Health there is often a culture of defence rather than apologising. The experience of some patients and relatives is that some NHS staff and doctors dismiss their concerns. There is a feeling that doctors are concerned to admit they were wrong Therefore it is a change on the overall culture that is needed.

The group questioned how it would be possible to change the current system when defensiveness is ingrained.

In relation to claims, the question was raised as to why there is a time ban in place. If a claim is not processed in time it can be dismissed, which can be unfair in certain circumstance and confusing for those involved.

Ideas/questions to take forward into the new system:

How will the administration of the new system be done?

Issue of time factor needs to be looked at;

An open and speedy system is required;

Education of the public

– people needed to be provided with specialist advocacy;

Time and delay

– the actual process of consideration needs to taken into account.

The Ombudsman is aware that the current process is not right and is trying to get the Scottish Government to bring in the Australian idea of the ‘Power of

Apology’. We need to look at what the complainer is seeking to achieve.

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No-Fault Compensation Review Group

There is a difference between complaints and litigation. A ‘sorry’ 6 years down the line becomes a very empty ‘sorry’.

Summary

This group would like to create is a compensation system that does not just write a cheque for £x and then close the case. Essentially Compensation should not just mean money

– the word redress may be a more accurate term. Compensation should mean putting the claimant in same position as was before the injury. The group discussed that we need to have a consistency in our objectives. A new compensation system would have these elements:

A change in culture

– this would bring benefits to patients, clinicians and the service itself. It would result in improved relations;

Patient safety and learning lessons

– an advancement in patient care;

Complaints system

– this needs to have a synergy of objectives;

Patient Information

– there must be an obligation of openness and transparency at the time adverse events happen (a legal duty of candour).

An effective system of complaints, which may be part of the whole investigation process

– where people are asking for money they should get it promptly;

Rehabilitation

– this is the duty to put a person back in the same position as before the adverse events:

- Early money is an important factor in this as it can make a huge difference to the quality of a person’s life;

- Confidence

– medical negligence and trust. People are currently scared to speak out for fear of ramifications. There is also a culture in

Scotland of having complete faith in our doctors. We need to try and restore the nature of the relationship so that a patient feels confident to go back into hospital as many people need continued care;

- Bereavement counselling

– it is currently difficult to get access to this quickly and effectively. People need practical assistance

Monetary compensation

– this needs to be appropriate compensation.

A tariff system is not appropriate as everyone is an individual. Ceiling on compensation is a concern.

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No-Fault Compensation Review Group

Group 2

(1.03)

– Note of Discussion (17 September 2009)

To consider:

Question:

What are the potential benefits/drawbacks of the current system?

(Bullet 2 on MRG Paper 6)

Disadvantages

Current system focuses on compensation.

Looking at each case individually from a legal perspective.

The best witness on the day can win the case - this not necessarily the most expert, but could be due to personality.

Cases can be too long from the incident, especially in the case of children injured at birth (often the case will not come to court until the child is old enough to be able to assess the injury). (One case where "child" was

21.)

Adversarial nature of process adds to delay.

No protocol on timescales.

Not enough open disclosure.

Information is piecemeal and varies from Board to Board.

No automatic provision of records/information.

Lack of access to all relevant documents, e.g. critical case review.

Experts may not tell lawyers what information should be available and thus requested.

Lawyers often don't have access to interview staff or won't want to interview them until they are sure they have a good case.

Staff are concerned about the impact on their job/career.

Current system could be seen as blame oriented.

Professional body or media can be more of a threat than a court case.

Payments coming from Boards could be seen as a reason for playing cases long.

If case is coming under Legal Aid then Board needs to consider the balance of costs. If the case will go to court for 4 weeks then that could cost more than the settlement and therefore "economic" settlements can be made.

Paradox that the worst cases, with the poorest performance, will get settled quicker and so the

“better” doctors whose cases are in dispute will more likely be the ones taken to court.

No system of periodic payments.

Advantages

Current system provided proper level of compensation.

No punitive damages or over compensation.

Other issues

Other reviews take place, e.g. critical incident review in relation to some of the cases.

Some Boards give the Procurator Fiscal the critical incident review report.

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No-Fault Compensation Review Group

Health Boards can look at overall trends, rather than just an individual case basis, for quality and safety reasons.

Definition of harm versus injury.

A patient can be harmed by the risk of the procedure.

In the US, a patient signs up for a stated risk rate.

Expert witnesses can be found for both sides.

Electronic case records will improve record keeping and thus the information available for a case.

No fault compensation scheme could be set in a learning framework.

Staff can sometimes be critical of each other but this then makes it hard to work out who is right.

No module on litigation in training for doctors, etc.

Some Boards ask practitioner to write a statement at the time of the incident that they can then refer to this record of the incident from their perspective over time when needed.

Structured settlements don't work.

A new system will have legal uncertainty until it settles in. Current system has at least some certainty.

New system will still be adversarial as there will still be some disputes.

A lot of the issues are about perception and beliefs, which can be different from the medical, legal or media perspective.

A new system would need to be fit for purpose, timeous and user friendly.

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No-Fault Compensation Review Group

Group 3

(1.04)

Note of discussion (17 September 2009)

To consider:

Question:

(i) Why and on what basis would we single out medical from other injury?

(Bullet 4 on MRG Paper 6)

(ii) Are there any human rights implications of removing the possibility of litigation? What are the implications of the answer to this question?

(Bullet 7 on MRG Paper 6))

(i) Why and on what basis would we single out medical from other injury?

The sub-group members felt that:

 it was more appropriate to use the term

‘professional healthcare treatment/activity’ rather than ‘medical’ as we were looking at professional healthcare in general and healthcare related injury;

Suing the NHS as employer was no different from suing any other employer

– as employer NHS had vicarious responsibility;

Injury sustained during treatment was a personal attack on patient’s

 body and was different from slipping in a supermarket;

Patients’ assume that they will receive safe/effective care and treatment when they entrust the NHS with their care and wellbeing.

The group identified the following reasons to justify singling out healthcare activity from all other types of activity:

Personal Care

– the process of healthcare is much more personal and patients were placing themselves under the care and expertise of someone else they trusted to look after them;

Choice

– when someone was ill they felt obliged to get treatment and didn’t necessarily feel that they had a choice on where this was provided within the NHS;

Complexity of law/process/issues

– there was a complex process for making a claim for medical negligence and the time factor and delay in settling cases (sometimes 14 -15 years to identify needs) was an issue particularly when people were critically ill as a result of the injury. Most of the medical issues needed to be assessed by experts;

Health was perceived as a social responsibility. As a National Health

Service there was a lack of choice. There was a responsibility on the

NHS to provide a good standard of care and when this fails it has a responsibility to pick up the cost of compensation and treatment costs.

If something goes wrong it fits well with that philosophy that society should pick up the bill to fix it. Everyone has an interest in ensuring quality of care.

Compensation is costed according to what would have to pay and this includes social care costs; by receiving damages calculated on private care when NHS meets the cost;

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No-Fault Compensation Review Group

Patients would continue to need access to treatment. There was a personal relationship with the healthcare provider and they needed to be able to trust the system and the doctors to treat them fairly after any claim;

In some cases it took a long time before an injury became apparent.

(ii) Are there any human rights implications of removing the possibility of litigation? What are the implications of the answer to this question?

Extract from Article 6 of Human Rights Act 1998

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The sub-group considered that this question raised too many legal questions they could not answer and suggested that a Human Rights Lawyer would need to clarify:

Whether people had a civil right to litigation?

Whether people had a civil right to be heard in a court of law?

What is definition of an independent tribunal?

Extract from Article 8 of Human Rights Act 1998:

“Everyone has the right for his private and family life, his home and his correspondence.

The sub-group considered that this Article was not relevant to the work of the review group.

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No-Fault Compensation Review Group

Group 4

(1.05)

Note of discussion (17 September 2009)

To consider:

Question:

How could a no fault scheme take account of situations where under the current scheme awards would be significant

– for example, in the case of birth injuries?

(Bullet 6 on MRG Paper 6)

The sub-group focused on neurological damage to babies i.e. babies born with: o

Congenital defects; o

Damage by delivery

– no negligence involved; and o

Damage by delivery

– negligence established.

It was felt that birth injuries probably had to be seen as a special case because of the large amounts of care costs, compared with other cases. In many other cases payments might be more in respect of pain and suffering, and emotional distress and trauma.

This was also an area where there seemed to be particular unfairness in existing arrangements, with significant compensation in some cases but no access to compensation for birth injuries where negligence could not be established.

It was noted that litigation could be lengthy, complex and traumatic and could involve high costs. A no fault approach might allow many cases to be dealt with more quickly than at present, with causation established through an inquisitorial/tribunal approach. Any savings in legal costs could enable improved levels of compensation.

There could be advantages in care packages in all cases being provided to a clearly-defined standard and level of quality through the

NHS, rather than separate privately-financed packages, possibly funded through the existing CNORIS scheme (this would need to take into account that some care would be provided through local authorities).

Excluding cases involving congenital defects the sub-group considered that smaller lump sum payments could be agreed if these were supplemented with a binding contract for the provision of a care package with a promise about the degree/level of care.

More people could be compensated as care package rather than large lump sum payments may cost less. Better care would be provided by diverting from big payments to care package.

This approach would place more emphasis on rehabilitation rather than large lump sum payments as for example in the New Zealand model.

It was recognised that any change would have to be seen as fair by the public and health professionals.

The no-fault approach could potentially mean more of a focus on meeting the needs of the patient quickly, and less emphasis on blame/ mistakes by professionals. Disciplinary, governance issues etc could be considered separately as at present.

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No-Fault Compensation Review Group

It was noted that the current negligence-based arrangements could involve real pressures for health professionals where sometimes cases could be raised many years after the events to which they related. This could be traumatic for individual professionals involved.

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