Stephanie Prior, Partner
Medicine, Science and the Law - July 2010
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It has been 13 years since the Clinical Disputes Forum was established. It is a multidisciplinary body that was set up as a consequence of Lord Harry Woolf’s Access to Justice Inquiry. Its main aim was, if at all possible, to find more costeffective ways of resolving disputes, relating to complaints/ legal issues about health care and medical treatment.
Prior to the formation of the Clinical Disputes Forum, litigation involving medical treatment and issues relating to that treatment were long-winded and cumbersome. In the early 1990s, I was a trainee solicitor and I remember cases against National Health Service (NHS) Trusts/ general practitioners (GPs) taking many many years to conclude. The procedure was sluggish and, unless a claimant medical negligence solicitor was proactive in pursuing their client’s case, then often cases would rumble on for many years. Legal Aid Certificates were generally granted for almost all applications for Legal Aid, as it was then called; and the certificates remained in force for a long time unless the Legal Services Commission were notified otherwise. There were no conditional fee agreements and very few, if any, legal expense insurance policies in existence covering the cost of clinical negligence claims.
Litigation then was protracted. There was no clear structure to the NHS complaints system. However, as the number of complaints and claims against hospitals, dentists and private health-care providers grew, so too did the inquisitiveness of patients and the willingness to seek explanations of what happened and thereafter to seek appropriate redress. Not only were patients keen to seek financial compensation, but they were also seeking reassurance that what had happened to them would not happen to anyone else. In addition, most were seeking an apology from the treating clinicians/practitioners. At this time, there was a lot of mistrust between the parties and a reluctance on the part of health-care providers to admit that something had gone wrong. The lack of openness was seriously damaging to the patient/clinician relationship. It was also apparent that there was lack of efficiency in dealing with such complaints and it was a very slow process with very little structure to it.
The purpose of the Woolf reforms was to
- Encourage greater openness between parties;
- Encourage parties to find the most appropriate way to resolve the particular complaint;
- Reduce delay and costs;
- Reduce the need for litigation.
By this time, it was quite clear that most of the delay in investigating medical claims occurred before proceedings were issued. Lord Woolf made recommendations that both parties work closely together in an open fashion to try and expedite the investigation process. The general aims of the Pre-Action Protocol were:
- To maintain/restore the patient/health-care provider relationship;
- To resolve as many disputes as possible without litigation.
The specific objectives included early communications between the parties, including encouraging patients to voice concerns about treatment as soon as possible. Likewise, health-care providers were to develop systems to deal with early reporting of complaints and set up systems for investigation of serious adverse treatment outcomes and to provide full reports relating to outcomes, with full disclosure of investigations to encourage early resolution. This included reporting any complaints to Trust management and adverse incidents to their defence organizations/insurers at an early stage.
The NHS Complaints procedure was restructured and redesigned to provide patients with an explanation of what happened and an apology if it was appropriate to do so. It is not designed to provide compensation, but once the procedure is exhausted advice can be sought from a solicitor and litigation can be instituted by the patient, if necessary. The old Community Health Councils were established by an Act of Parliament in 1974 to monitor and review the NHS and to recommend improvements to the system. They also had a role in supporting and helping patients with their services. In England the Community Health Councils were abolished in December 2003, but they continue in Wales.
Instead, Patient Advice and Liaison Services (PALS) were set up in England as part of the patient and public involvement programme. In a way they replace the services provided by the old Community Health Councils. They are available in each NHS Trust and help to provide information to patients about NHS services. They collate information relating to complaints and are an early-warning system for the NHS Trust by monitoring problems with services and keeping the Trust management informed. Some may feel that they are biased as they are usually housed on the NHS Trust site and patients can feel uncomfortable using the service because of the close proximity of location.
In addition, the Independent Complaints Advocacy Services provides independent advice for patients wanting to complain about NHS care. As well as lodging a complaint, patients with a gripe can also apply for copies of their medical records.
As part of the Woolf reforms, requests for medical records were changed and so became more specific about the records that were required and information was given to allow health-care providers to report adverse outcomes, if necessary. A deadline was fixed and records have to be provided within 40 days. If this deadline is not complied with, a full explanation should be provided by the health-care provider as to why the records cannot be supplied to the person requesting them. If the records are not provided within 40 days without such explanation, an application can be made to the court for Pre-Action disclosure.
The old-style Letters before Action, setting out the allegations of negligence against a NHS Trust, became known as a Letter of Claim and a template for the recommended contents of the letter, allowing the level of detail to be varied to suit the particular circumstances, was provided. Proceedings should not be issued until after three months from the date of the Letter of Claim unless there was a limitation issue. If an offer was put forward with the Letter of Claim, it was recommended that a medical report be attached that set out the details of the claimant’s injuries, condition and prognosis. A template was also available for the Letter of Response with acknowledgement of the Letter of Claim within 14 days. The intention was that if any admissions were made, they should be binding.
The reforms also promoted flexibility in instructing medical experts, with the introduction of joint experts if at all possible. Alternative Dispute Resolution was a new proposal promoting that the parties should consider some form of alternative way to resolve matters between themselves without involving the courts. Examples of Alternative Dispute Resolution include discussion and negotiation, early neutral evaluation by an independent third party and mediation. Traditionally, defendants did not have sufficient resources to carry out full investigations into complaints and claimants would not provide the defendant
with enough information with which to investigate the said complaint. In addition, doctors and clinical staff were reluctant to admit to making mistakes for fear of damage to their professional reputations or career prospects.
The Civil Justice reforms were implemented in April 1999 and a new set of court rules came into existence replacing the old county court and high court rules. The rules unified the courts and there are sanctions for noncompliance with the protocol. The rules have been followed for 11 years and on the whole have generally expedited the litigation process. The clinical negligence protocol has produced a uniform way of dealing with medical claims and expediting the litigation process. Complaints are taken seriously by the NHS Trusts, medical records are supplied and once the NHS Complaints procedure has been
exhausted, patients who have not managed to resolve their complaint and issues relating to medical care are armed with the tools they need to seek legal advice.
Nowadays, the litigation process is likely to lead to early resolution of cases. Claims are monitored closely by the NHS Trusts and the NHS Litigation Authority and this leads to ensuring that procedures and protocols are in place to improve care and maintain standards. However, it is not entirely good news for claimants. Legal Aid over the years has been reviewed and revised and the Legal Aid Board is now known as the Legal Services Commission. Legal Aid Certificates are now Certificates of Public Funding and are only granted to those who have little or no income. Fewer people qualify for public funding and unless they have legal expense insurance cover by way of ‘before the event’ insurance policies, the only other gateway to litigation is to fund privately or via
a conditional fee agreement (no win, no fee agreement). The Legal Services Commission is currently revising the way in which firms supply advice to clients under the scheme and further changes are expected to come into play in October 2010.
The most recent changes to the civil justice system relate to the radical reforms made by Lord Justice Jackson in respect of costs. He has produced a 663-page report, which sets out significant proposals for procedural issues for personal injury and commercial litigation. It includes proposals relating to costs including fixed costs, an end to recoverability, a conditional legal aid fund and a crackdown on referral fees as well as changes to the cost shifting. His
report was first published at the beginning of May 2009 and his final report was published on 14 January 2010. It is said that the report is the first-ever fundamental review specifically focused upon civil costs and the review sets out a coherent package of interlocking reforms that are designed to reduce litigation costs and promote access to justice.
The proposals may or may not be implemented and many of them will have to be implemented by statute and will, therefore, need to be reviewed by the new coalition government. It remains to be seen whether they will be fully implemented and at present just the existence of these proposals is causing a lot of controversy from both claimant and defendant camps.
On the whole, while the litigation procedure has improved to some degree, it is still woolly in places and needs improvement. I am not sure that this will be in the form of the proposals put forward by Lord Justice Jackson, but only time will tell. In the meantime, we will have to work with the tools we have to ensure that cases run smoothly, costs are kept at a reasonable level, clients are happy and the NHS/private health-care providers/GPs continue to learn from mistakes made that cause injury and often unnecessary suffering to others.
Stephanie Prior is a Partner at Anthony Gold. She specialises in complex personal injury and clinical negligence work, with a particular interest in birth injuries, child abuse claims and fatal accident cases. For further information email Stephanie Prior or call 020 7940 4000.
