House of Commons Health Committee
Complaints and Litigation
Sixth Report of Session 2010–12
Volume II Oral and written evidence
Additional written evidence is contained in Volume III, available on the Committee website at www.parliament.uk/healthcom
Ordered by the House of Commons to be printed 22 June 2011
HC 786-II Published on 30 June 2011 by authority of the House of Commons London: The Stationery Office Limited £14.50
The Health Committee
The Health Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Department of Health and its associated bodies.
Membership Rt Hon Stephen Dorrell MP (Conservative, Charnwood) (Chair)1 Rosie Cooper MP (Labour, West Lancashire) Nadine Dorries MP (Conservative, Mid Bedfordshire) Yvonne Fovargue MP (Labour, Makerfield) Andrew George MP (Liberal Democrat, St Ives) Grahame M. Morris MP (Labour, Easington) Mr Virendra Sharma MP (Labour, Ealing Southall) Chris Skidmore MP (Conservative, Kingswood) David Tredinnick MP (Conservative, Bosworth) Valerie Vaz MP (Labour, Walsall South) Dr Sarah Wollaston MP (Conservative, Totnes)
Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk.
Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/healthcom.
The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in printed volume(s).
Additional written evidence may be published on the internet only.
Committee staff The staff of the Committee are David Lloyd (Clerk), Sara Howe (Second Clerk), David Turner (Committee Specialist), Steve Clarke (Committee Specialist), Frances Allingham (Senior Committee Assistant), and Ronnie Jefferson (Committee Assistant).
Contacts All correspondence should be addressed to the Clerk of the Health Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 5466. The Committee’s email address is [email protected].
1 Mr Stephen Dorrell was elected as the Chair of the Committee on 9 June 2010, in accordance with Standing Order No. 122B (see House of Commons Votes and Proceedings, 10 June 2010).
Complaints and Litigation 3
Witnesses
Tuesday 1 February 2011 Page
Julie Bailey, Cure the NHS, Catherine Hopkins, Legal Director, Action against Medical Accidents, and Kieran Mullan, Director of Strategy and Engagement, The Patients Association. Ev 1
Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine. Ev 13
Tuesday 15 February 2011
Ann Abraham, Parliamentary and Health Service Ombudsman, James Johnstone, Director of Customer Service and Assessment, Parliamentary and Health Service Ombudsman, Paul Streets, National Director of Patient and Public Experience, and Chris Bostock, Head of User Experience, Department of Health. Ev 20
David Flory CBE, Deputy NHS Chief Executive, Stephen Walker CBE, Chief Executive, NHS Litigation Authority, and Sarah Albon, Director for Civil, Family and Legal Aid Policy, Ministry of Justice. Ev 32
Tuesday 26 April 2011
Lee Bennett, Assistant Director of Patient Experience and Public Engagement, and Complaints Manager, Cambridge University Hospitals NHS Foundation Trust, Anne-Marie Ledson, Team Leader, ICAS Yorkshire and Humberside, and Helen Marshall, Risk Manager and Complaints Lead, Calderdale and Huddersfield NHS Foundation Trust. Ev 41
Dr Mark Newbold, Chief Executive, Heart of England NHS Foundation Trust, and Helen Thomson, Executive Director for Nursing and Deputy Chief Executive, Calderdale and Huddersfield NHS Foundation Trust. Ev 51
Tuesday 10 May 2011
Desmond Hudson, The Law Society of England and Wales, Muiris Lyons, The Association of Personal Injury Lawyers, Carole Ayre, Browne Jacobson LLP, and Nicola Wainwright, Leigh Day & Co Solicitors. Ev 59
Rt Hon Simon Burns MP, Minister of State, and Chris Bostock, Head of User Experience, Department of Health. Ev 69
4 Complaints and Litigation
List of printed written evidence
1 Department of Health Ev 79 2 Department of Health supplementary Ev 84 3 Department of Health supplementary Ev 84 4 Dee Speers Ev 86 5 Dee Speers further Ev 87 6 Dee Speers supplementary Ev 88 7 NHS Litigation Authority Ev 89 8 NHS Litigation Authority supplementary Ev 92 9 National PALS Network Ev 97 10 The Law Society of England and Wales Ev 100 11 Cure the NHS Ev 104 12 Independent Complaints Advocacy Service Ev 107 13 Independent Complaints Advocacy Service supplementary Ev 111 14 Independent Complaints Advocacy Service further Ev 114 15 Association of Personal Injury Lawyers Ev 124 16 Browne Jacobson LLP Ev 142 17 Health Service Ombudsman Ev 145 18 Action against Medical Accidents Ev 149 19 Leigh Day & Co Solicitors Ev 152 20 The Patients Association Ev 157 21 The Patients Association supplementary Ev 159 22 Health Service Ombudsman supplementary Ev 161 23 Association of Personal Injury Lawyers supplementary Ev 162 24 Browne Jacobson LLP supplementary Ev 163 25 Sands Ev 164 26 Miss Andrea Burke Ev 168 27 Nursing and Midwifery Council Ev 172 28 Medical Protection Society Ev 180
List of additional written evidence
(published in Volume III on the Committee’s website www.parliament.uk/healthcom)
1 Patient Opinion 2 Miguel Cubells 3 S Ramskill 4 The Royal College of Radiologists 5 Centre for Effective Dispute Resolution 6 National Children’s Bureau 7 HealthCare Resolutions 8 Independent Healthcare Advisory Services
Complaints and Litigation 5
9 Jan Middleton 10 Hill Dickinson LLP 11 Terry Leigh PhD 12 Mr Cedric Maddox 13 General Medical Council 14 Arthur Briggs 15 Mr and Mrs Cowling 16 Anne Ward Platt 17 Gerry Ferguson 18 Medical Defence Union 19 The Carers Federation 20 Care Quality Commission 21 SEAP 22 Jane and Dennis Bannister 23 Martin Jeremiah 24 Mencap 25 National Voices 26 Ros Phillips 27 NALM 28 NHS Confederation 29 Lord Dunboyne 30 Colin Yeo 31 Charlotte Radford
List of unprinted written evidence
The following memoranda have been reported to the House, but to save printing costs they have not been printed and copies have been placed in the House of Commons Library, where they may be inspected by Members. Other copies are in the Parliamentary Archives, and are available to the public for inspection. Requests for inspection should be addressed to The Parliamentary Archives, Houses of Parliament, London SW1A 0PW (tel. 020 7219 3074). Opening hours are from 9.30 am to 5.00 pm on Mondays to Fridays.
Ms Manuela Manuel Jeffrey Williams Sam Smith Jan Ooms Ann Reeves James Titcombe Francis Biard Mr William Cassie Powell Gary O’Mara David de Grothier David Eaton Martin James Wildman
6 Complaints and Litigation
Anonymous Miss Donna McCallum Mr Johnstone Mr Leslie Smith
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Oral evidence
Taken before the Health Committee on Tuesday 1 February 2011
Members present: Mr Stephen Dorrell (Chair)
Rosie Cooper Chris Skidmore Nadine Dorries David Tredinnick Yvonne Fovargue Valerie Vaz Grahame M Morris Dr Sarah Wollaston Mr Virendra Sharma ______
Examination of Witnesses
Witnesses: Julie Bailey, Cure the NHS, Catherine Hopkins, Legal Director, Action against Medical Accidents, and Kieran Mullan, Director of Strategy and Engagement, The Patients Association, gave evidence.
Q1 Chair: Good morning, ladies and gentlemen. national issues in healthcare. We also have a helpline Thank you for coming along to what is the first where we provide assistance for individuals, and we evidence session of our inquiry into the handling of do provide a lot of assistance with pursuing a complaints by the National health service. Could I ask complaint. Members of the public can access advice the three witnesses first of all to introduce yourselves leaflets and example letters on our website, or and say a word or two about the organisations that sometimes we end up providing a complete service you come from, starting with Julie Bailey, please? for them, including providing a friend—a volunteer Julie Bailey: Julie Bailey, founder of Cure the NHS. from AvMA who will go with the individual to a Chair: I am sorry, but the acoustics in this place are meeting. We have been supporting some members of dreadful. Could I ask you to speak up a little bit? Cure the NHS during the independent review stage Julie Bailey: Julie Bailey, founder of Cure the NHS. at Stafford. Cure the NHS started out as a small group of relatives We also provide a certain level of support for lawyers and patients in Stafford that had been harmed by the who are acting in clinical negligence claims. I myself Mid Staffordshire hospital. We felt we needed to get am a solicitor who has worked in private practice for together to form a group as nobody was listening to more than 10 years. Before that I worked for 20 years the problems that we had suffered at the hands of Mid in the NHS. I am a qualified midwife, health visitor Staffordshire hospital. We formed the group and very and general nurse, so I have a background there. I quickly became quite a big group of 40 or 50 people. have also done some lecturing on accident From then on, once we received coverage nationally investigation, so I have a fairly round view on how from the media, people contacted us on a national things may go wrong in organisations and how basis, from around the country. All have experienced complaints can be pursued. similar problems to ours at the hands of Mid Staffordshire hospital. In the majority of groups that Q2 Chair: Thank you very much. That is an unusual we have now, the people who are suffering are either combined background that is clearly relevant to this the vulnerable or the elderly within hospitals subject. We are obviously very interested at the throughout the country. beginning of our inquiry to hear the perspective of the Chair: Thank you very much. organisations and individuals who have made Kieran Mullan: I am Kieran Mullan from the Patients complaints or been responsible for representing those Association, which is a long-standing registered who have made complaints against the health service, charity that campaigns very broadly under the motto to hear of their experience of that system in reality, to “Listening to patients, Speaking up for change”. We understand how it feels to be people who are seeking have a very wide range of issues that we will to bring complaints and the complainants’ perspective campaign on, largely driven through what we hear on the system. from patients and carers through our helpline. We I would like to start, if I may, with a question to Julie have had a particular long-standing interest in the Bailey, because I was struck by the comment in your issue of complaints because that is something we hear written submission that you felt there was a victim about frequently. I would echo Julie’s comments that, culture amongst NHS staff. You said that the board unfortunately, the bulk of that material does revolve put protection of the hospital before individual around the care of elderly patients in hospital. complaints. If that is the experience of an individual Chair: Thank you. body bringing complaints against the health service, Catherine Hopkins: Good morning. I am Catherine there is clearly something wrong. I would like you to Hopkins, legal director at AvMA—that is, Action tell us a bit more about that perspective. against Medical Accidents. We are a national charity Julie Bailey: That is right. What we have found is that campaigns for patient safety and justice. We have that, once you start to complain about the system, a separate campaigning arm where we are looking at from the very beginning they want to quash that cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
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1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan complaint and they want you to turn it into a concern. again, for central policy to say, “Apologise, apologise, When you say, “I want to complain about my apologise” is valuable, but then apologies which are treatment” or “I want to complain about my relative’s not substantive are not valuable to people and can treatment”, they will ask you straight away, “Is it a actually make things worse. concern? Are you concerned about that?” You say, The last point was about the perception that we should “Yes, I am concerned,” and the reply is, “So that is a protect NHS staff and the victimhood that arises. concern then, not a complaint. So you want it to be Sometimes people see NHS staff trying to do their known as a concern.” Straight away that is the best in very difficult circumstances, and in such complaint gone. You have expressed “a concern” and instances they often don’t complain. They might be in nobody learns from that concern because it is not an accident and emergency department getting very logged as a complaint. From there, you face animosity poor care, but seeing that the staff are unable to straight away. You take your complaint to the nurse provide good care because they just have too many on the ward and the nurse on the ward says, “Do you patients to look after, maybe understandably, they feel it happened like that?” Then they try and twist it have some sympathy for the staff. What I don’t think to say, “It happened like this.” they recognise is that, in not making a complaint What I meant by that was, when the Healthcare because they feel individual staff are not to blame, Commission report came out, in Stafford the first they are not registering their dissatisfaction with a response from the trust itself—and, we felt, from the service that should be accountable for the fact that it Government at the time—was to put up barriers and is not adequately staffed or whatever it might be that say, “That was then. This is now.” There was a huge is making the staff unable to do a good job. campaign to get behind the front-line staff, to support Catherine Hopkins: I certainly think there is some the staff, and the people who had suffered at Stafford truth in what Kieran said, and I would agree with him were really very much pushed into the background. that not all responses to complaints are unsatisfactory. The attitude was, “That was the past and this is the From our position, however, we see that hospitals or future, and we need to get behind the front-line staff trusts that are failing tend to provide that rather sort because they were very short staffed. That happened of conditional apology—a mealy-mouthed sort of then and this is now.” response which only makes the complainant cross and We do feel that, whenever a complaint is made, it is become highly defensive. They have probably more the staff who are made to feel as if they are the victims complaints than the better trusts as well and so the and not the actual complainant. Each response we situation is compounded here. You get more have received to a complaint which says that complaints, you don’t deal with them adequately and something happened on such and such a date, is people are dissatisfied and understandably angry with basically as follows: “If you feel it happened that way, the response. That is certainly something that we then we apologise.” That is quite a common theme have seen. throughout the country. Equally, we do sometimes see very good responses where people say, “We genuinely are sorry and we Q3 Chair: Would the other two witnesses like to have changed our position.” In my private practice a comment on this feeling that the service immediately situation arose involving a child who died having had goes on the defensive? to go back to theatre. The child had had an Kieran Mullan: It is important to note, for adenoidectomy and bled, and had to go back to organisations like ourselves that put ourselves forward theatre. They didn’t put an IV infusion up and the as ones that represent people who are unhappy with child died quietly in the night. It was a combination the service, that we almost inevitably will only see of respiratory arrest and the child had had morphine and hear from people who are unhappy. There may and so on. The hospital’s letter of complaint said, “We well be times when people are happy with complaints’ have changed our practice when children have to go responses, and some of the surveys that show high back to theatre after surgery.” That was a highly levels of dissatisfaction will obviously, therefore, satisfactory response. Saying, “Not only are we sorry inherently be showing small levels of satisfaction. we got it wrong but we have changed our practice” is One of the things that stands out to me from Julie’s a good response. A bad response is the response that evidence is the emphasis, from the Department of Julie has mentioned. Health’s most recent policies for local resolution, for Another bad response which we often see arises when people to raise concerns immediately before they complainants are blamed for the culture of victimising become a complaint. That, I think, might be the idea individual members of the medical or nursing staff. from central Government. You are therefore relying But it is not complainants that do it. Very often, the on people to take things very seriously, even if it is very first reason for complaining is to ensure that not a complaint, and to recognise when something somebody else’s mother won’t be dealt with in that should be made a complaint. But the reality on the rude and dismissive way. People who complain, by ground is that it can turn into exactly what Julie has and large, want something to stop and someone else described, in some sense, as “Well, let’s not really not to suffer. Instead, however, the sort might be, make it a formal complaint.” We have seen that “Nurse so and so did it. We have disciplined her.” The position readily adopted. In relation to apologies for complainant might reasonably respond, “That is not what you perceive to have gone wrong, that is what we wanted when we complained. We didn’t want something we see very commonly. Again, there is you to say that somebody has been victimised.” progress in some respects; previously you wouldn’t The most extreme example has to be when systems get people to apologise and that was a real bugbear. So failure causes the mal- administration of a drug, such cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
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1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan as the Vincristine cases, where a drug is given That is one downside to looking at complaints intrathecally instead of intravenously. What happens numbers. Also, we know from lots of surveys that is that a junior doctor finds himself on a charge of the majority of people who want to complain don’t gross negligence or manslaughter. Yes, systems are complain, and so, even at the 150,000 figures we are looked at, but it may take a jolly long time for the at now, the survey suggests only about one in five physical changes in administration systems. I am still people who want to complain do so. So I would look not sure whether these junior doctors get the adequate at the figures with caution. supervision from senior doctors. Instead, they are scapegoated and I think—I am sorry, I don’t think; Q6 Dr Wollaston: Can I follow that up? Could you AvMA thinks—that that is the reaction of the trust, clarify for the Committee what proportion of not the intention of the complainant. complaints do you think are vexatious complaints? Kieran Mullan: In our experience, probably relatively Q4 Dr Wollaston: Can I ask Mr Mullan and Ms small numbers, but I have never come across hard Hopkins a couple of questions, please? The first one evidence. You would have to look at getting some is to do with the significant rise in complaints since kind of actuals from those organisations that deal with the new system came into force. What do you feel is complaints in a systematic way, such as the the cause for the 13.4% increase? Do you think it is ombudsman, for example, and perhaps ask some NHS the new system or have complaints or problems organisations. I am not clear as to what the proportion genuinely risen? is. What I am clear about is that, because there is Catherine Hopkins: Generally people are aware that such a reticence to complain and people are, in my they may complain and perhaps people are absolutely experience, so forgiving of the NHS, most people that exercising their right to do that. That has to be one do lodge complaints have a genuine concern. element, but also in areas such as staffs, where the Catherine Hopkins: In terms of individuals who system was failing, then the rise in complaints, as I complain, I agree that it is a small number who make said earlier, is an indication that the organisation has vexatious complaints. If we look at the people who a problem. contact our helpline and wish to make a complaint, we see that most people have a genuine complaint. Q5 Dr Wollaston: So you think that, within an But, again, if we look at ongoing contact that we individual organisation, if you see a rise that is receive, perhaps there are people who do raise significant, but otherwise, generally, you think it vexatious complaints and they may well be a little probably is people being more aware. Have I got more persistent in the way they pursue their that correct? complaint. Therefore, it may just have the appearance Catherine Hopkins: Yes. that there are more. But if you look at the individuals, Kieran Mullan: There are probably a number of we don’t believe that we are seeing a large number of factors. I don’t think we can underestimate the people who ring our helpline and we think they didn’t publicity that Mid Staffordshire generated when the have a complaint. We will give advice to everyone, report was first released, which would figure into the but there are times when you feel that probably there latest statistics. Over a sustained number of days, isn’t a fundamental issue there. across all news media, there was significant discussion Julie Bailey: A lot of people have been labelled a of poor care issues. For example, we have just vexatious complainant if they are not being given the recently done a campaign with the Daily Mail on poor answers. I meet people every day who have been care, and the year before we released our own report going for years just to get the truth, because once you about poor care. Whenever we do any kind of or your relative have been harmed in a hospital it is sustained media engagement, we receive complaints. something that you never get over. You just want So you must imagine that people respond more to the those answers as to what happened. Only then can you organisations that they wish to complain about. feel you can move on and accept what has happened It is difficult to say whether there has been a to you. A lot of people are labelled vexatious because deterioration in care as a whole. We have seen for a they haven’t been given the answers, and a lot is number of years, from a number of different because people don’t want to put their hands up organisations as well as our own, real concerns about because of the blame culture. care of the elderly in hospitals. That is a concern, but, Dr Wollaston: Thank you for clarifying that. again, I wouldn’t necessarily think that that has Catherine Hopkins: Can I give an example there of a increased over the past year. It is also interesting to complaint that one of the members of AvMA assisted note that the year before this rise in complaints, which on, which involved a death in a private hospital? The has been in regard to hospitals, there was an almost surgeon told the parents of the dead boy that every equally significant rise in GP complaints over one time he did that operation he remembered what had year. Why you get such a big jump over one year happened; it had informed his practice and he had again might be related to out-of-hours care that has learnt from it. This is a very long time ago, but it is received lots of publicity. It is very hard to tell. an extreme example which illustrates the point. The I would perhaps caution against the approach of hospital never acknowledged they had anything wrong looking at absolute numbers as a significant barometer with their systems, and the complaint against the of anything to do with the complaints system, for a hospital lasted five years because they never looked at couple of reasons. Hospitals that are proactive on their the issues. complaints policy, that encourage and want Kieran Mullan: May I add one more point on this complaints, will have higher numbers of complaints. issue? 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1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan vexatious complainants policies, most of them would we are going to put it right.” It’s as if the whole describe one of the ways in which you might culture is in denial. We can’t blame the doctors; we categorise someone as a vexatious complainant as can’t blame the nurses. There doesn’t seem to be a when they don’t accept the medical records as factual. way of the management putting their hands up What is on the records is fact and they won’t accept because then a complaint seems to go against the that, so they might be a vexatious complainant. hospital. It is another complaint, another target that Obviously we have seen, I have seen, Julie’s group they are not meeting. and others have seen lots of examples where the medical records aren’t accurate, and so that is a good Q8 Grahame Morris: It is helpful to the Committee example of the system as a whole. Sometimes the in terms of making an assessment of how the system system has rules, and you can understand that people is working, but you have concentrated on the first working within that system may well, for example, stage in relation to making a complaint against the have exhausted the complaints process for that acute trusts, and I value your experiences. Could you individual and that trust. They can’t do anything more tell the Committee a little bit about the second stage, for the complainant and there isn’t any point in the where the complaint goes to the health service complainant continuing to contact them. But, from the ombudsman and what you think the strengths and complainant’s point of view, their reasonable weaknesses are of that? expectations, as an individual, haven’t been met by Kieran Mullan: There are obviously strengths in the system as is. having a system that introduces independent clinicians, for example, to review case notes, which is Q7 David Tredinnick: Do you think that the something that we feel very, very strongly people resistance of hospitals to receiving complaints is should be entitled to, that they should not have to rely because the complaints process is faulty and that if a on employees of the organisation they believe harmed hospital accepts a complaint the process is so arduous them or their relative to provide the scrutiny of the and difficult at the moment that it mitigates against care. That is why there is value in that. patients? Our biggest concern about the Ombudsman is that, for Kieran Mullan: From the hospital’s point of view? whatever reason you might want to explore with them, No, I don’t think that the hospitals see the system as they take very, very small numbers of complainants, troublesome for them. There is a specific issue that either as official investigations or what they describe has now been resolved in terms of time frames. as intervention where they don’t investigate a Hospitals were expected to deliver responses within a complaint but they will contact the trust. Combined, certain time frame, and while it might have been well it is something like 2% to 3%—3%—of those people intentioned, I think it had some unintended that take their complaint to the ombudsman. So we consequences. Perhaps sometimes hospitals felt are talking about thousands of people who have, for pressured to deliver complainants’ responses that were whatever reason, felt that the response they received unrealistic within the time frame. Hospitals are locally was not adequate, who do not receive any kind resistant to receiving complaints because they don’t of independent scrutiny of that response. That would have as a priority, strategically, dealing with the be our biggest concern. individual concerns of complainants. It might be that The quality of the ombudsman’s investigations is very if you are a strategic director and you have all these difficult to gauge systematically because, as with the big ideas for your trust about moving things forward, NHS, I have never ever seen actual surveys, for transforming wards, and meeting targets, it can be example, that they have conducted of people that have quite inconvenient for an individual person to be used their service to find out whether or not they were saying, “Well, you haven’t got my care right.” But pleased with it, particularly those people that don’t get then, in their defence, you have to remember that an investigation or an intervention. There needs to be sometimes hospitals aren’t in a position to make the actual measurement of people that go to the changes that they need to make to address things that ombudsman as well as people that complain to the cause complaints. NHS. If you look at accident and emergency departments Catherine Hopkins: We also have that concern over winter, for example, I would imagine you would because we understand that about 10% of the referrals see quite regularly, every winter, people complaining, to the Ombudsman are taken up and that leaves a large having to go into A and Es, waiting many, many number of people who are just referred back to the hours. Unless the Government are going to trust. They have gone to the ombudsman because they significantly restructure the funding of acute trusts to are unsatisfied with the response. There needs to be allow them to massively increase their resources over something to fill the gap that was previously filled by accident and emergency periods, there is nothing independent review. hospitals can do about that. So, from their point of Julie Bailey: We haven’t been successful in any cases view, they probably find it frustrating to have to have in Stafford with the ombudsman. My own case wasn’t those complaints when they are not in a position to taken up. What the ombudsman did was contact the change the system that they need to change. trust. There were two issues. One was over a drug Julie Bailey: I don’t think the complaints procedure policy and the trust said that they had now got a drug is complicated. It is quite a good system if it is worked decision tree in situation, and they had also reviewed to, but it’s the whole culture now of not putting your their staffing levels. We later found out that none of hands up and saying, “We made a mistake here and those things had been put into place. I believe they we are going to learn from this mistake. This is how rely on the trust telling the truth. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
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1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan
Kieran Mullan: Can I come back on this because it force a trust to take their recommendations because is important? We have had combined discussion with trusts take them. They do contact trusts, ask for action the Care Quality Commission and the ombudsman on plans, all these little things which are useful, but I this specific issue because we shared those concerns. don’t think it is their practice to visit. We would say Catherine talked earlier about a good response being that, until you visit a unit, observe the care and see a description of changes that have taken place at the for yourself that that change has been made, you trust and in policies, and so on. While I agree that that cannot be sure that it has been. If, after a few years, is, on paper, a good response, as Stafford highlighted we had a more effective complaints system and we very well, there are years of responses that are could see evidence that trusts were learning and supposed to be correcting the same problems. making the changes, you might be able to be less Something clearly wasn’t working. We have seen, for hands-on, so to speak. But there isn’t any evidence of example, in Basildon, complaints over a number of that, so we think that a hands-on approach is the only years about the same issue. Clearly they weren’t answer. I don’t think it is a matter of powers. It is a implementing the plans they put forward. matter of policy that they don’t take that incredibly Our understanding is that the ombudsman is now proactive approach that we would like. working much more closely with the Care Quality Julie Bailey: What we have found with the public Commission to pass on recommendations. What we inquiry at Mid Staffordshire is that we have a sackful would like is this. If we think someone has gone to of action plans, several that have been sent to the the effort of making a complaint and overcome all the ombudsman, but they were never put into practice. hurdles to find their complaint was upheld, we think Nobody was there to check on them. We have got they should be entitled to a specific check as to action plan after action plan going back 10 years, but whether things were implemented. My understanding they were never implemented. I am sure that is the is that the Care Quality Commission aren’t in a same throughout the country. position to offer that specific check on individual Catherine Hopkins: We find this is endemic in all upheld complaints to check that the changes promised areas of the NHS. We published a report last year to the ombudsman and to the complainant have been about patient safety alerts where the National Patient made. Safety Agency was sending patient safety alerts out to trusts and trusts were supposed to register back with Q9 Chair: Has the CQC formally said to you that it an organisation whether they complied or not, and is not in a position to follow up undertakings given they hadn’t. But there was no joined-up way of by trusts in response to complaints? checking whether they had. You had one agency Kieran Mullan: They are in a position to do that in a issuing the alert. One of the alerts was about broad sense, so they will receive ombudsman’s nasogastric tube feeding. I was astonished to hear that recommendations and they will take that into account that was something that was necessary, from my in their risk profiles of organisations. If there were, background. I couldn’t believe those issues were still for example, more than one very serious complaint going wrong. But then nobody was saying, “Who’s about an organisation, then they might choose to go done it? Who has complied?” and investigate and check that has been upheld. Or if, It seems that it should be one of the standards that is for example, they were already reviewing procedures checked, and not just self-reporting either, which is and care at a trust and they had access to an what it is or it was; it was self-reporting. The CQC ombudsman investigation, they would take that into should be looking, as part of its inspections, at things account. But they can’t provide an actual specific like, “These are the patient safety alerts”, “These are check as to whether something has been implemented the recommendations of the ombudsman”, or, “This is for those 300-odd cases that are upheld by the the bundle of complaints about this particular issue ombudsman. you have received.” As Kieran was saying, “Show us where you have improved” and do not just tick a box Q10 Dr Wollaston: I want to follow something up. on a form. We heard two different figures. One of you mentioned 2% to 3%. Q12 Valerie Vaz: Part of that problem is that it is not Kieran Mullan: It is 3%. published, and perhaps the recommendations of the ombudsman should be published so that people can Q11 Grahame Morris: I have a supplementary see what the problems are. At the moment it does following on from what Kieran said. In fact, in those seem a bit like the report comes back, the complaints 3% of cases where the investigation is being carried are upheld and that information doesn’t go anywhere. out and the trust has been found wanting, what powers But if it is made public, obviously with redacted does the health service ombudsman have to ensure the names, then maybe that would be a way around it. trust takes some appropriate action? Catherine Hopkins: Quite a few of these Kieran Mullan: It is an interesting question because recommendations from other agencies are published. the ombudsman has powers to make Rule 43 recommendations of coroners, where they recommendations. Their wording is that, should a trust will send letters to chief executives about issues that refuse to accept those recommendations, that would have arisen during the course of an inquest, can all be be incredibly serious and very unusual. They are never found on the internet. It is the lack of joined-up in a position where they are, in any sense, regularly thinking. Nobody will have looked to see whether the making recommendations where a trust say, “We are ombudsman dealt with the issue which the coroner is not going to follow them.” They don’t ever need to now asking about. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 6 Health Committee: Evidence
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan
Kieran Mullan: From our discussions with the CQC, Kieran Mullan: I don’t necessarily agree that there is there is improvement on that front. The CQC has a good information in the system that provides you with much more proactive approach to collecting data from a robust idea of whether there is an issue at a trust. A across the system. Again, if you remember, the lot of the poor care that goes on is not picked up on. ombudsman’s complaints are tiny, tiny numbers, so You can’t compare one organisation to another across the system there is lots of access to effectively. From a commissioner’s point of view, it information. It is that the CQC does not have the must be incredibly challenging to know whether you resources. There is no way at all that it has the have a real issue with your provider, which is why we resources to deliver that onsite regular inspection. It think there is a need for actual inspection. While we is using a much more inspection-based model. It is progress the information agenda, which will help using random assessments and unannounced visits at enormously in all these issues, until we have moved all times of the day and night, but it is the actual down that road further, we do require that observation number that it can deliver which is instrumental in an of care, that discussion with patients, and review of assessment of all these different issues that we talk complaints in a very proactive way. about. We are not convinced that it can do it, which Julie Bailey: I disagree. I think all the evidence is is why we have put forward the idea that—again, this there. That is what we, as a group, do in Mid is because of where we are at the moment—there Staffordshire. We look at all the evidence that is should be independent inspection based within coming out of the trust now so that we know hospitals, perhaps with one clinician who is assessing everything that is going on and we know if that all of these different issues. Because we are dealing hospital is safe. If each trust was made to publish all with very, very serious failings in care repeatedly of its data, it would give the public an insight as to across the NHS, we have to treat that with the what is going on in that hospital. All the evidence is seriousness that it deserves. there. It is just correlating it.
Q13 Valerie Vaz: That is partly my point because, if Q16 Chair: The central finding of the Mid the information is just going round to the chattering Staffordshire inquiry was not that nobody knew; it NHS people, it is not going out to the patients or was that all the information was there. people who will be able to pick up, “This has Julie Bailey: It was all there, yes, if somebody had happened to me.” It just so happened that Julie was just taken all of that evidence together. sitting in a cafe and she was a strong woman who was able to pick up all the other complaints. People came Q17 Yvonne Fovargue: May I move on to the forward and that’s how we all understood what was support that is available now for people when they are happening with Mid Staffordshire. making complaints, whether that is sufficient and is Julie Bailey: But we have an ideal opportunity at the working or whether something else is needed? moment to force foundation trusts to publish all their Catherine, in your written evidence you said that data. Now is the time. Instead of allowing them to PALS sometimes acted as a barrier. Could you explain have closed board meetings, we should force them to how that happens? have all their evidence in public so that they issue all Catherine Hopkins: Our experience, talking to our the complaints, all the serious untoward incidents, clients, is that PALS officers often tried to provide an their infection rates, and their staffing levels. This is explanation and stopped the complaint there. It rather what we should be doing. If all of that information links in with what Julie was saying about, “It’s not a was out in the public arena, then the public would complaint, is it? You are raising a concern.” The have a choice. They will know if that hospital is safe. attitude of some PALS officers can be, “Let me see if I can explain this because you may not have quite Q14 Chair: It is very striking that, in discussing the understood the situation. That may be why you are role of the CQC and the trust’s board in publishing raising a complaint.” Essentially, they are there to this material, you have not mentioned the potential provide explanations and help, but it is slightly role of the Commissioner, who is, in theory, the body skewed because you are saying, “You have that should not be paying the bills if they are not complained about your treatment but actually I don’t satisfied with the standards and the quality of what think you have quite understood.” That is where we is delivered. feel it is a barrier to properly investigating a Kieran Mullan: They suffer from the same problem complaint. We would never suggest it was fobbing off, that the CQC does in the sense that, if hospital boards but it does effectively appear to be rather like fobbing that manage organisations do not have an off. It does not reach the complaints process. That is understanding of the quality of care and whether they our concern. are meeting NPSA alerts or not, and if they can’t Patients don’t see PALS officers as independent grasp the issues, to expect external organisations who because they have an office next to the data protection have to commission all the GP services, all the people who are providing you with your copying, communities services, all the hospitals— notes or whatever. The PALS group, as everyone knows, came from community health councils. They Q15 Chair: But it is for the commissioner to require had an office in the shopping centre, or somewhere the information that Julie quite rightly says ought to like that, and it was seen as independent, separate be delivered to be delivered to them. They don’t have from the hospital organisation. When they moved into to go and inspect it. They simply have to be held to the office behind the reception desk in the hospital— account. sorry, I’m talking about my local hospital—it lost that, cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 7
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan and I think that is a big concern. I have personal provide a very good service in that regard. Our experience of having difficulties as well over an concern is the issue of challenge and scrutiny. elderly relative. It is very difficult to feel that Sometimes people feel that ICAS is there to look at somebody is dealing with that independently and you what the trust is telling you and give you advice on are not just being fobbed off by someone. whether or not what the trust has told you is reasonable, and they don’t. Q18 Yvonne Fovargue: Is that the experience that Julie Bailey: ICAS work in different ways in different you both have as well? parts of the country. I have met people who have been Julie Bailey: What we have found, from the people supported by ICAS, who have felt they were very who contact us, is that they see PALS as part of the challenging; they weren’t just there to rubber-stamp system. Very often the PALS workers were NHS staff and explain what was said. The problem is that people who just moved on to PALS. The first contact is that don’t know that ICAS exist. With regard to the people they will send you back up to the actual ward that you in Mid Staffordshire, I had not met one person who are complaining about. From there, you will discuss it had contacted ICAS. If they were advertised more, with a member of staff who is going to be looking more people would use them and there should be a after your relative. So very often—and this is one of structure so that we know what their role is. the reasons why there are very few complaints or were Catherine Hopkins: The recurring theme here is that very few complaints about Mid Staffordshire—is that the provision over the whole of the country is you are very reluctant to complain in that situation. inconsistent, with ICAS, with PALS or whatever. We From what I saw in the eight weeks that I was on the have experience of suggesting to helpline callers that ward with my mum, if a member of staff had come they contact ICAS. They said no, the ICAS in their over and said, “Do you want to complain?”, I would area will only help if people are unable to write letters, have been reluctant to if I was leaving my mum there. effectively can’t write or have learning difficulties There is a reluctance. But, with PALS, they will send generally. That is one particular case; it is not you back up to the ward and you discuss that with the universal. ward staff and that is the complaint not made. You The rather more universal problem that we see is not think those issues have been resolved but then it a problem but a way of working for ICAS. They are happens again to some other relative. Some other individual advocates for individual patients, so they complainant has to go through the same thing. It is are not looking at the bigger picture. With more not logged. PALS seems to be part of the system. resources, we would like to do more, but we are able, Kieran Mullan: They are part of the system; they are a little, to look at a bigger picture. We had a situation employed by trusts. There is ICAS, which are fairly recently where three people in a week contacted independent, and LINks. There are these different us about a hospital where there were delays in a bodies. If we are talking specifically about PALS, they SUI—a serious untoward incident—serious delays are employees of a trust and often of a very junior outwith the proper timetable. The caseworker who had grade. It absolutely, there, depends on their attitude knowledge of these three cases wrote to the chief and how the trust has chosen to place them within, I guess, the power structure of the hospital. I have met executive of the trust saying, “Could you explain if with PALS that seem to be quite high in that structure there is a problem with your SUIs”, without and report to the board; they seem very rigorous and mentioning the clients’ names. do a good job. But then you can have PALS which We do see that as our role if we are able to. We are a just as easily could be one admin officer who works tiny organisation; we only employ 22 people, and two days a week, who has no ability to influence and most of us are part time. It is very small, and we who will just be dismissed by the staff. So for PALS would love to have a fantastic database that would specifically, absolutely there is, of course, a role, to immediately ping up the minute such and such a trust have people within NHS trusts who provide that comes up on a call. We can’t do that yet, but where day-to-day advice, contact and information for we can we will. But that is not how ICAS are patients. But when you move towards things like constituted. The help they provide to the people they complaints and concerns, they are not independent; work for is good, but it doesn’t cover the point of they are employees of the trust. For people looking looking at systemic problems. for independence, you don’t get that from PALS. Kieran Mullan: I would echo that. It is about having to be seen as an organisation with power and influence Q19 Yvonne Fovargue: What about the links? You or be perceived to be that by the NHS. We published mentioned ICAS. Obviously, PALS is an important two volumes of patients’ stories this year and last gateway. Is it a gate-keeper to ICAS almost or does it year. These are people that have gone through the perform a good— complaints process and, from the trust’s point of view, Kieran Mullan: It depends. Some PALS will be very it has finished. As soon as we contact the trust to say proactive and tell people about and encourage them to we are going to be publishing these stories, they have go to ICAS, but, just as easily, other PALS will never the chief executive on the phone to them personally, mention ICAS or the complaints process or any of who offers to drag them into the hospital and have these things. It depends on the local people involved meetings, and make lots of promises, because trusts and their policies. ICAS is very valuable for those have some sense that the Patients Association is an people that struggle to make complaints in a very real organisation that challenges, that meets MPs, and all sense, such as writing letters, giving them confidence, these other things, so they want us to think that they going to meetings, all these other things. They do have done a good job. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 8 Health Committee: Evidence
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan
Julie Bailey: It is about the publicity. I don’t think it’s everybody should be told about it, and not just told about the Patients Association. about it in a kind of dry paragraph constructed by the Kieran Mullan: Yes, of course, publicity, absolutely. trust that is probably not going to be very Julie Bailey: It is about the publicity, because we encouraging, but they need to have the service sold to contact the trust and as soon as they hear there is them, to an extent, to encourage them to use it. going to be publicity they will do whatever we want. Kieran Mullan: But that’s because they know we are Q23 Chris Skidmore: Do you think ICAS is fit for an organisation that will seek publicity and publicise purpose in its current form? things, whilst ICAS don’t. That is not their role; they Kieran Mullan: It goes back to my original point. I don’t do that. One of the things that I had heard was think patients’ genuine advocacy should always that the reason why Citizens Advice, which previously involve people being able to access proper scrutiny of held an ICAS contract, lost the contract, unofficially, what they are being told, and ICAS does not was that they had started to do things such as produce systemically do that in a structured way. It might be reports that were critical of NHS complaints handling that individual advocates try to do that, but that is not and these other things. So I think it is important. the actual inherent and contracted part of the service. There should be a proper independent scrutiny of Q20 Chris Skidmore: This follows on the ICAS answers. point. We have evidence in a submission from Department of Health that shows that only 8.6% of Q24 Grahame Morris: Following on that, with the complainants are able to access ICAS. Do you think new structure, the changes that are coming through that is acceptable and, if not, obviously, how do you set out in the Health White Paper, do you think local think we would go about increasing that access? HealthWatch would be a suitable avenue as advocates Julie Bailey: The first thing you need to do is to force for the patients to replace some of the systems we the trusts, once again, to put out in their letter when currently have in place that don’t seem to be working? they send out that initial response within the 48 hours Catherine Hopkins: Our view is that HealthWatch that ICAS is available to help support the could fill a very valuable role in looking at trends complainant. Despite all the spotlight being on particularly, because that is the big issue. The problem Stafford, the letters of complaint going out still do not with complaints being dealt with in isolation is never mention ICAS. They mention AvMA but not ICAS. going to lead to organisational change. We do think So, even under the spotlight, we still don’t have that that HealthWatch, which will also have its top of the going out to complainants. They still don’t know that pyramid, could have a role if it works, effectively, in body exists. doing that. Catherine Hopkins: I would just question, from what I had said before, whether this low percentage is due Q25 Grahame Morris: Do you think it should have to capacity for ICAS or is it due to the lack of referrals a role? to ICAS. Catherine Hopkins: Yes, we do. I know there were some points that people have raised about conflict, and Q21 Chris Skidmore: I was going to bring up the I am not entirely sure why. I would like to know more capacity point. details of why people think there would be a conflict, Catherine Hopkins: We have had reports back from because my understanding is that HealthWatch is patients that it’s a capacity issue. going to be involved in advising on commissioning, but there can surely not be anywhere near as much of Q22 Chris Skidmore: What I was struck by in your a conflict as the organisation that delivers the patient’s evidence, Ms Hopkins, was the contract that your own medical or social care being part of the complaints organisation used to have with ICAS and the work procedure. Obviously any complaint has to go there you used to do in partnership together. I was interested first. to know why that ended. Was that simply a lack of money? It seemed that they had been using Q26 Grahame Morris: It’s part of the information independent organisations and charities like yourself you require, isn’t it? to plug the gap. That lack of specialist knowledge has Catherine Hopkins: But, in terms of being now disappeared, it seems. independent, I would have thought, and it goes back Catherine Hopkins: I’m afraid I don’t know. I’m a to the Chair’s point, why aren’t the commissioning relatively new employee. I am told from behind me organisations being more vigilant about trends in the that it was resources at ICAS. Did you hear that? hospitals or the trusts where they are commissioning Chris Skidmore: It was a resource issue. their treatment? They should be, I am sure, and that Kieran Mullan: One thing to bear in mind, if you is definitely our view. If there is the idea that look at ICAS, is that some providers talk about the HealthWatch will continue to have this advisory role fact that many thousands of people get in touch with to consortia, then they should be able to say, “The them but don’t want the more intense case support. trends here are such and such and therefore what are They want the basic document on how to make a you going to do about that when you are complaint and then they are happy to progress that. commissioning that treatment?” That does partly explain the relatively low take-up. I have spoken to people at trusts that say the same Q27 Chair: I don’t think there was any suggestion thing. They tell people about ICAS but not everybody from us that there was a conflict. wants that service. At the bare minimum, absolutely Kieran Mullan: The White Paper suggested it. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 9
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan
Julie Bailey: What they have found in Stafford with services or social care services. So there are potential the former groups, LINks and PPI Forums, is that they conflicts. have failed us miserably. What we are concerned It is how you drill in that independence of function. about is this. I would ask you all to look at this week’s To go back to before PALS and everything else, it transcript from the public inquiry where overview and is all related to who is funding it and the degree of scrutiny have given evidence to the public inquiry, and independence. Let me tell you, I used to be a chair of they just have not had a clue what they are supposed a hospital and, without misusing this phrase, I was to be doing. Instead of scrutinising in the hospital, always pleased to see complaints. It was the what we have found over the last week is that they thermometer of the organisation. If we fixed the have tried to protect the hospital. They have been complaint, the hospital was a better place tomorrow aware of what has been going on but didn’t want to than it was yesterday. I was known for loving bring shame on the town and on the hospital. It is a complaints—and I wish there weren’t any—because real concern to us in Stafford that the same type of they tell you what is going on. You get at it and sort people that were attracted to these types of groups will it out. I believe that the health service has become join and form HealthWatch, which are now LINks and defensive in an unbelievable way. Believe me, my have been the PPI Forums. It seems to attract the same father has been in hospital and I have spent every day type of people, who don’t like to challenge, who like I have visited almost having an argument about to have a nice cup of tea with whoever they are something at the hospital where they do try and make supposed to be scrutinising. I’m afraid I feel that is a the person making the complaint feel awful for having society thing. People don’t like to challenge any more, made the complaint. But, truly, the thing that leaves but that is what we need. me aghast at Mid Staffordshire is the responsibility of the board and the medical staff committee. I am still Q28 David Tredinnick: On Grahame’s issue of totally bewildered about not how it happened once but conflict, I am slightly surprised by your answer, how it continued. because the Government have made it clear that they To come back to here, yes, we are on a different are concerned that there might be conflict between journey, but the new Health and Social Care Bill is individual complaints, advocacy and the riddled with conflicts, with doctors as providers, all of commissioning process, but I don’t hear a great those kinds of things. Are we going to be talking tremble on your table about this, which slightly about the same thing on a different platform? There surprises me. are good things, such as HealthWatch, and the idea is Kieran Mullan: The idea, as I understand it, is that, if really brilliant, but how do you give it its budget? HealthWatch has had an actual role in commissioning How do you secure its independence at local and decisions because it is consulted by the consortia, for national level and how do you give it all the tools it example, and then someone makes a complaint about needs to deliver? What you are saying is that it could something that relates to a commissioning decision, it be great, but it will also be subject to every single would be a conflict to ask HealthWatch potentially to thing I have heard you say this morning and that is look at that complaint. Catherine, your point, which not good enough. was very well made, is that maybe that might happen, Catherine Hopkins: It will be interesting to look at but it is certainly better than the current situation the model of the old community health councils, where people don’t have access to a really robust which were funded by the NHS and were effective in organisation at all. some ways. I am quite sure they weren’t effective in David Tredinnick: In that case, shall we look at all ways, but they were seen as an effective serious untoward incidents and how they would be organisation and somehow or another independent of dealt with? the healthcare providers. Rosie Cooper: David, may I come in on the conflict Catherine Hopkins: Should it be looked at better to bit? see what good bits from that can be incorporated David Tredinnick: Please, through you, Chair. into HealthWatch? Kieran Mullan: Julie is a good example of this. It is Q29 Rosie Cooper: It is really important. about attitude more than anything else. It is actually HealthWatch will be in two parts. The national the attitude. Because the division from the community HealthWatch will be a sort of committee of the Care health councils to the other forums became quite Quality Commission. The problems there are not the unpleasant, a lot of the people with the right attitude conflict bit which you are talking about as in spotting who were involved in the community health councils trends and getting in there and informing decisions. didn’t take themselves forward to the new There is a problem at that level perhaps with it having organisations and have not done since. You have to its own budget, properly supported, and being a make everyone involved in it look for those kinds of functioning organisation as opposed to a nominal people. You have talked about the repeated failings organisation which is used as cover in the same way and that things weren’t picked up on, and these same as everything else. mistakes are happening again and again. Mid Locally, HealthWatch—and again that would inform Staffordshire is this terrible example that everyone commissioning decisions down and inspection thinks is atrocious and people have been let down decisions—will be funded by the local authority. It terribly, but, as far as I am aware, no one has ever will be on the Wellbeing Board and, if you like, it really suffered, as a result, in terms of their pay, their is almost scrutinising local authority health and care career, or in any kind of systematic way. The chief cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 10 Health Committee: Evidence
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan executive of the trust resigned and had his pension Catherine Hopkins: We have two concerns about the and all these other things. SUIs. One is that there is a central reporting system of some sort that is truly central. Something like the Q30 Rosie Cooper: I marched a finance director out CQC could be better than strategic health authorities of my hospital. So don’t say a failure is not always because they are still looking at individual areas. We rewarded. think that that should be considered. Kieran Mullan: No, of course, but it is about the We also have concerns about the variability of the consistency with which that scenario arises. If we look conduct of SUIs around the country. I have already at Mid Staffordshire, this is an example of such talked about one particular trust, but we have also had terrible care, and that chief executive didn’t really situations where families aren’t consulted at all, seem to become accountable for that. How does that despite what it says in the protocols for a SUI. One reflect accountability across the system? woman whose son died at a major mental health trust Julie Bailey: Community care councils were before had been begging for help for ages and no help came. my time, but would they work now? Is it a cultural Somebody rang her the day after he died and asked change, you know? The team then was paid by something about the beginning of the SUI, and she somebody, the same as LINks. Why did it work then? said something like “It’s a bit late now”, the day after Would it work now? her son had died. They took that as an indication that Chair: I want to bring Mr Tredinnick in. she wanted nothing do with the SUI at all and she Julie Bailey: I am not convinced. heard no more about it until the existence of the report was revealed in the disclosure documents for the Q31 David Tredinnick: Building on what has been inquest. One of our roles, and we mention it in our said, perhaps this is the moment, through you, Chair, submission, is that we provide advocacy and to talk about serious untoward incidents and how they assistance at inquests. We had to get the inquest are going to be monitored in the future, because at the adjourned so that we had time to consider the SUI. moment we have an obligation on the strategic health We have had another situation where, again, families authority and the primary care trust to learn lessons were completely unaware that a SUI took place, and from serious untoward incidents. How do you think another where, despite the fact that a young woman this will happen in the future with GP commissioning died of acute pancreatitis after an ERCP examination, and the national health service commissioning board? which was a very unusual circumstance, the trust did Do you have any views on this, please? not think, until we wrote to them, that it was necessary Kieran Mullan: Before we talk about the value of to do it. We have this central reporting concern so that SHAs having a view of SUIs, we have all talked about trends can be seen, but we also feel that they are not the fact that we don’t believe they were doing a very being consistently carried out in the way that it was good job of it. If you look in particular, for example, envisaged in the protocols. at mental health issues, strategic health authorities Julie Bailey: With the experience from Stafford, what have legislative obligations to investigate certain we need is something very, very simple. We need very circumstances in which patients and the public are few bodies because what we have found is, with all involved in mental health harm, the circumstances of these regulatory bodies, all this information, is lost. that, and you will see the same investigations from What we need is just a handful. strategic health authorities with the same failings over David Tredinnick: I must say I am suffering from and over again. I am not entirely convinced that the acronym fog. Even this morning we have had so many SHAs made a very good job of their requirements to different acronyms that I am trying to work out which monitor SUIs and investigate them, but, absolutely, administration had which body at which time and surely that is not an argument to say that someone getting guidance from colleagues across the room. So shouldn’t be doing it. I have not seen any explanation I absolutely agree with what you are saying. yet of where that function will move to. I understand that the Care Quality Commission will have SUIs Q33 Rosie Cooper: Could I ask a quick question of reported to them. Maybe the idea is that the Care Kieran about the accountability of the board of Quality Commission replaces that function of directors for the standard of complaints and the investigation, but we have already talked about the handling and the action afterwards? What kind of considerable constraints on their resources as is. accountability do you think that should be? I think it As to commissioning consortia, I imagine that will be should be absolute. quite difficult because you are going to have different Kieran Mullan: Yes, When you consider the material consortia, perhaps commissioning different services of complaints that we have talked about, care of the from the same organisation. When there is a SUI, it elderly and very basic issues related to actual harm of could get quite confused as to whose responsibility it patients, that is not the top priority of the board. If is to investigate it. they are not fully accountable for that, then what is their role? The barrier to accountability in that respect Q32 David Tredinnick: So it is a conflict of at the moment is the lack of proper performance interest then? measurement of complaints handling. We can’t isolate Kieran Mullan: It is not a conflict of interest but more particular trusts in an effective way and say which responsibility: whose job is it and what is it their job ones do their complaints handling well and which to do? A commissioner’s job is not the same as a ones don’t. We have all talked about examples we performance manager’s job at a strategic health have seen as good and bad, but we are not able to get authority. They are different roles. any handle on trusts that do well generally and trusts cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 11
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan that don’t do a good job generally. That is why we offered this amount in correspondence.” We say, “We have advocated that, if every complainant was asked think you should go to a solicitor and get some how well they thought their complaint was handled, advice.” They find that their claim is worth that was done in a standardised way and that considerably more, and it can be by the power of 10 or information was published, we might start to get a a 100 sometimes, believe it or not. That is one issue. handle on those trusts that are doing a better job than In the larger claims there is anecdotal evidence—and others and then you can levy pressure on the boards some of it is my own personal experience as a civil of those organisations not doing a good job. litigation solicitor, who specialised in acting for children with cerebral palsy, so I did catastrophic Q34 Rosie Cooper: In fact, the trust I chaired—I injury cases—of delay in the NHSLA admitting understand it doesn’t do it any more—used to produce liability, and that increases costs considerably. Their a report. Every complaint in the hospital, in short delays are not necessarily a deliberate filibuster; they form, went to the board: complaint, upheld or not just don’t get on and investigate. You can send what upheld, and actions. Obviously, that could be is called a letter of claim, which is the letter that you interrogated by board members. You couldn’t have all send before you issue proceedings, in which you set the detail but just a short summary. That doesn’t go out in detail the damages and the issues at stake. They on now. Those board papers were available to the will write back a sort of holding letter, which is almost public and you need that level of scrutiny and the equivalent of the letter that we have heard can responsibility. come back in a complaint situation. You know that it Kieran Mullan: One of the techniques that I have is because they do not have independent evidence and, come across that seems to be very effective is that therefore, they can’t admit liability because the some trusts will bring, when the patient or the consultant who was treating has said, “Absolutely not. complainant wants to, patients to the board to talk to I did nothing wrong.” them first hand about the impact the poor care had on I have actually witnessed a telephone conversation them or their family, and that seemed to be very between NHSLA panel solicitors and a claimant’s effective at engaging the board. solicitor where they said, “I am really sorry this has Rosie Cooper: I have addressed a whole hospital, the taken so long for us to admit liability, but we have senior nurses, managers and whatever, and I am not only just been allowed to get independent evidence.” sure it made any difference. There you go. On that case it was run on a conditional fee agreement Chair: Could we move on, finally, to look at the link and had reached the stage of exchange of expert between the complaints process and litigation? Valerie evidence, which is two-thirds of the way to trial after would like to start there. issue. There are a lot of costs there, and I have lots of examples like that. So those can be reduced. Q35 Valerie Vaz: I have to apologise now that I am I think that Sir Rupert Jackson missed a huge a lawyer but I try to tell people, “Don’t go to law”. opportunity to look at reducing civil litigation costs. One of the huge things that I noticed was that almost He has not reduced civil litigation costs. He has £807 million was spent by the NHS on litigation. simply recommended that the claimant, the person What are your views are on that, how we can least likely to be able to afford the costs, is going to minimise those costs and is there any way we can set pay. There are still going to be success fees and there up a system where you have to balance what a doctor are still going to have to be after-the-event insurance does and what people in the NHS do so that they are policies to protect the claimant against an adverse free to do what they do within reasonable limits but, costs order. The claimant will have to pay those, if yet, also take into account patient safety? What are they can get an ATE policy, which is another issue your views on that? altogether, because the insurance companies may Catherine Hopkins: There may be scope for looking decide it is not a market to be in any more. We feel at what are often referred to as the lower-value claims that the combination of withdrawing legal aid for and looking at alternative ways of settling those clinical negligence and introducing non-recoverability claims. As an organisation, although we don’t of success fees and insurance policies is going to be a primarily only support litigants, we believe that serious impediment to access to justice for some of people who have legitimate claims for injuries should the most vulnerable people in the country. be able to pursue their claims in one way or another. If you go back again to seriously brain injured or We would in no way think that people shouldn’t spinally injured patients, they are not going to have receive compensation for their injuries, but we don’t the resources to pay their solicitor up to £2,000 for support outrageously large costs bills. an initial medical report to screen, to see whether the To take the lower-value claims first, we think there solicitor will take it on as a conditional fee agreement. could be an alternative way of doing it, as long as If they can’t get an insurance policy, they will be the patient is on an equal footing with the defendant terrified about bringing litigation because every healthcare provider. You have to bear in mind that a resource they have is at stake. If you have absolutely healthcare provider has infinitely more resources than no resource and you are a child with spastic an individual patient and therefore you have to look quadriplegic cerebral palsy, then you probably could at ways in which they can get independent advice and do it because you have no resources to come after, but assistance before settling a claim. We do see litigants most other people will and they just will be frightened in person who correspond with the NHS Litigation to do it. Authority who are offered derisory settlements and We have this combination of the worst of both worlds. then they may ring us up and say, “We have been Sir Rupert Jackson said in his report that he made cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 12 Health Committee: Evidence
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan these recommendations on the understanding that happened here?” The ward sister said, “I thought—”, legal aid provision for clinical negligence would not and I suppose I shouldn’t swear here, but he was change. He seems to have reneged—and I apologise outraged that she swore. She said, “Oh”, you know, for that word; he seems to have gone back—on his “something” and the conduct of a nurse really was the view, because his latest open letter and evidence on kernel of his complaint. His mother had fallen out of the current consultations on funding does not support bed and cut her head, there was blood everywhere, that view any more, but it seemed a safety net. So we but in fact the head injury itself was probably not too now lose legal aid if the proposals go forward as they serious, but that is what happens with a head are and we end up with this massive burden on laceration. He was brought into the ward to see it all claimants. This is a huge concern. I am sorry I have on the floor, mother on the floor, bed covers gone on too long. everywhere, and he said, “Gosh. Sister, what do you think of the situation?” He rather expected the sister Q36 Valerie Vaz: I was trying to draw up how we to say, “I am very, very sorry. It’s appalling. The can save on those costs. We are talking about getting nurses should not have left your mother to the end when we are in litigation and it is dragged unsupervised.” But, no, she said, “My first thoughts out until the door of the court and then people settle. were, oh—” you know. That is what started this man’s But it’s actually before. Is it something that we should complaint off. So, yes, those situations could be tackle before? For instance, what stopped you from dealt with. going straight to law? I also think a lot of those situations wouldn’t go to Julie Bailey: In Mid Staffordshire the majority of law because the damages are small. There is a huge people that came forward to me for advice didn’t want difference, isn’t there, between that and the seriously to take the litigation route. It is the same throughout injured, where your damages are required to provide the country. All people want a lot of the time is you with a wheelchair and 24-hour care? There is no answers as to what happened to their relative and why. alternative to litigation. But the costs could be lower It is a torture not knowing, so you just see it as the if the NHSLA sorted themselves out and admitted next step. “I have taken on the complaints system. I liability earlier, because they do later. So they could have gone down the ombudsman route. I have gone do it earlier. We are not talking about cases where through the NMC. I have gone to the GMC. Now I liability is disputed to a trial on liability. We are will take the legal route.” A lot of people don’t want talking about admitting liability three years in when money; they don’t want compensation for what has you have done a huge amount of work. happened. They just feel it is a way of getting answers and to take it away from the trust. They feel that the Q39 Valerie Vaz: How would we stop that? Would litigation route is an independent way of getting this system stop that? those answers. Catherine Hopkins: I am not sure the system could stop that, but your system could, suggesting looking Q37 Valerie Vaz: But sometimes you do need to at the lower-value claims, because, sadly, it is cheaper protect people’s claims because they have a legitimate for the NHS to kill somebody than to maim them. I claim, like, for instance, if there has been an accident. am sorry, that is a horrible headline, but it is. If a case If someone has killed someone accidentally, not is a fatal case, that could be dealt with by your system deliberately, but if someone has died or there has been because there are statutory damages under the Fatal a huge issue regarding that, then obviously they need Accidents Act and smaller damages that are associated compensation. But I am thinking more along the lines with that. I don’t think you could deal with the bigger of judicial review when you have the judge looking at claims in any other way apart from earlier admissions. the claim, complaint or issue, on paper, and then Kieran Mullan: The only issue—and it touches on decides on that basis whether it should or should not what you have said about the nursing sister and the go further. We are looking at an independent person, conduct of a member of staff—is that people sue possibly a barrister or a lawyer in a mini-tribunal. because they want an effective response. They want Then the case goes on after that, and then you bring both independent advice on what has happened, but in the duty of candour, which means you have to get they want the trust in some way to be held to account. all the evidence. The only effective means they see is that they can sue Catherine Hopkins: That is quite a new idea. I have them and get some money back. In the same way, not ever heard of it. people before wanted an apology and they never got apologies, but now they are given apologies that don’t Q38 Valerie Vaz: I just thought it up. really mean anything. I can envisage a scenario where Catherine Hopkins: I thought you might have done. people get quite used to small payouts, for example, It would address quite a lot of the issues that surround because of neglect of a relative in hospital, but they the families that were affected at Mid Staffordshire. are not convinced that that has had any effect. We acted for one particular family who featured quite You need to have staff being held to account for poor a lot in the reports and things that have gone on care. People often think that means that relatives want because we provided support for them at the inquest someone sacked or struck off. I don’t think it is that and the family didn’t want to bring a claim, although they want that. They just want it to mean something, in fact, in the end, they did receive some damages whether it is an entry in the staff member’s record or because there was a human rights claim there. The some sense that it is part of a disciplinary process that central issue was that, when the son of the lady who might not mean they are sacked straight away but if died went to talk to the ward sister, he said “What they did it again it would have results. At the moment, cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 13
1 February 2011 Julie Bailey, Catherine Hopkins and Kieran Mullan you have a situation where, because of confidentiality NMC and the RCN, if we are talking about nurses— and employer contracts, the trust can’t even tell but it could equally be said about any healthcare someone who has complained exactly what has professional—would try and protect individual staff happened contractually to someone who has been from being held to account for the outcomes of things responsible for poor care. If I had complained, I would that weren’t really in their control. I can sympathise want to know whether that person has been given an with that. But the end result is that nobody is held to informal or formal warning and if it is on their record. account because the unions and the healthcare They are not allowed to tell people those kinds of professionals protect their interest groups, perhaps things. What we need is a system that satisfies people reasonably, because it is not always their fault. across the board, and then you would not have Managers aren’t really accountable in any particular anywhere near as many people suing. I would say way. So you just have this mess where the outcome is everybody that I have been in touch with who has that patients can receive poor care and nothing sued has done so because they didn’t feel the trust happens as a result. took the complaint seriously and made the change that What staff fail to recognise is that they make things they should have made. difficult for themselves by taking that approach, when Julie Bailey: Another problem is the NMC and the things aren’t their fault, by covering things up or GMC. There seem to be very few complaints upheld resisting scrutiny. If they didn’t do that, higher up the and relatives feel that the one thing you don’t want is chain people would be made accountable for things for another person to suffer the way your loved one like understaffing units and those kinds of things. The has or the way you have. That goes a long way. You person who loses out on this, the one person who think, “If we take litigation, at least then there will be doesn’t have a union representative, who can’t access a mark against the trust. Some money has gone out. a lawyer, who isn’t backed by some big organisation So there will be a recognition that that doctor has like an NHS trust, is the actual patient that suffers as harmed my relative.” It might go some way towards a result. reducing costs if the NMC and the GMC were more effective bodies and took more action. Like Kieran Q40 Rosie Cooper: Absolutely; fair blame. says, we are not asking for staff to be struck off. We Kieran Mullan: Yes, fair blame. just want a recognition that the doctor or nurse has made a mistake and perhaps a little bit of retraining. Q41 Rosie Cooper: Fair blame, responsibility, put it Just those actions would go a long way. right, move on. Kieran Mullan: That relates to my concerns. Often Catherine Hopkins: Listening to patients comes at the people promote this idea of a no-blame culture in the top of that, I think. NHS. I have real issues with that because there is Rosie Cooper: Absolutely. professional accountability and there is blame. People Catherine Hopkins: Because they are the ones who need to sit within that spectrum and it is not good actually see what is going on. enough for people just to say, “I’m incredibly sorry, I Chair: On that note, I am going to draw this session absolutely accept everything that has gone wrong and to a close because we are running now quarter of an I will take training.” Anybody doing a job has hour late. Thank you very much indeed for your responsibility to deliver on what they are expected to evidence. It has given us plenty of food for thought. do, and it may be that there are circumstances which Thank you for coming. are out of their control. I have talked about people working in very understaffed environments where bodies like the
Examination of Witnesses
Witnesses: Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine, gave evidence.
Q42 Chair: Ladies and gentlemen, can we move on for this part of the hearing. Mrs Speers, would you to the second session, please. I would like, on behalf like to go first? of the Committee, to welcome three witnesses to this Mrs Speers: Do you want me to take it forward? part of this morning’s session. The important thing from our point of view is to move beyond institutions, Q43 Chair: Forgive me; we have an interrupted line theories and structures and so forth and just hear what of vision. it feels like from the point of view of the individual Mrs Speers: Good morning and thank you very much who is caught up in this system. That is why we were for the opportunity to be here. It is the last place I keen that three individuals should come, and thank want to be, to be honest, but I must say that I fulfil you very much for volunteering to do it, to tell us the headline of complaints and litigation because I what it feels like to be caught up in a system that I am have had two cases. Mine was a misdiagnosed TB sure was the very last thing in the world you wanted to meningitis that was missed and I was told, no, there be in. I would be grateful if you could each, in turn, was nothing wrong and I had to find out for myself. first of all, introduce yourselves and then briefly tell In the end, I went to litigation because I couldn’t get the Committee what happened in your individual case any answers. I wanted an apology and I couldn’t get and what it felt like. That is really the starting point any answers. Then that triggered a mental health cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 14 Health Committee: Evidence
1 February 2011 Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine condition in my son and he died, which is in the for such a long time from your baby. It has a massive evidence. The whole situation is appalling. I am still impact on that relationship, and I have had to fight in NHS complaints five and a half years later, very hard to rebuild lots of elements of my life. unresolved. Having to go through the complaints procedure and finding that the hospital just will not—I mean, Q44 Chair: What are the stages that this process has obviously we tried to engage with them at the time of gone through? You put a complaint in five and a half being in hospital to get local resolution to get the care years ago. I needed to keep me safe, to keep me alive, and it Mrs Speers: My son had an aggressive mental just wasn’t there. I would complain even to the chief breakdown when I became ill, and it could be life as executive about what was happening. well—I don’t know—student debts, everything else. I can give you an example of a cleanliness issue. The He had an aggressive breakdown and he was issue I had was a bowel problem and I had to provide sectioned eventually, even though he presented the stool samples. These would have to be collected in a first time, according to national guidance, as in the cardboard pot. I was on an open ward at the time and highest risk category, but he was sent away with a would leave the sample in the communal toilet, tell leaflet to suffer for another three days. Then he the staff and they were supposed to come and take it harmed again and was taken in and sectioned. But away so it could be analysed and recorded and stuff the actual advice from the sectioning psychiatrist, the like that. But these stool samples from myself alone sectioning criteria and the Mental Health Act were all would accumulate, and there were other people doing ignored as he was left to his own devices, basically. I the same thing, which would give rise to still don’t know if he was murdered. I don’t know cross-infection, and I believe that is where the C. dif. what the situation is. He was found fatally wounded came from initially. We tried to get the then chief in a bathroom as an in-patient for his own safety. executive to come down and see for himself what was I never heard a thing. His possessions were sent home happening and he just wouldn’t come down. They just to me in a bin bag marked “NHS household waste”. wouldn’t accept what was happening under their own It is that, a bit like the swearing of the nurse, that has noses, and it was from there that led us to go down been the catalyst for this and I am determined to the official complaints route. explore every aspect of NHS complaints. I have mountains of research cross-referenced to documents. Q47 Chair: Thank you. It is very brave of you to be There are SUI policies and investigations which are here and thank you for that. We will come back, if we not independent, and it goes on from there. I am just may, just to discuss it, but perhaps we could ask Debra conscious that I am taking these ladies’ time. Hazeldine to tell us the history that brought you here as well. I am sure, in common with your two Q45 Chair: That is very helpful. colleagues, you would prefer to be any place other Mrs Speers: That’s basically where I am at. There are than here this morning. two cases. Debra Hazeldine: Absolutely. First of all, can I thank you for not only giving myself but giving my Q46 Chair: That tells us what the problem is very deceased mum the voice that she desperately needed? clearly, very graphically, from our point of view. I lost my mum in Stafford Hospital in 2006. She Thank you for that. Mrs Monte? was—this is very brief—diagnosed with bone cancer Mrs Monte: My name is Nicola Monte. I have spent in March 2006 and it was over a period of a couple quite a long time in Stafford Hospital, about 18 of days. It came completely out of the blue and it was months in total across three years. My nightmare very, very difficult to deal with. She responded very, started in 2004. The longest period in one episode was very well to aggressive chemotherapy but, eight or nine months of being an in-patient. I have a unfortunately, this affected her mobility and she had long list of issues that I have had to complain about to be admitted into Stafford Hospital because we were and I will try to list them. I can expand on them if assured that was the best place that she could get the you wish. physiotherapy 24/7 that she needed. She was put Initially, incorrect diagnosis and severe problems straight on to an open ward and very, very quickly she around cleanliness led to me acquiring three hospital was infected with every hospital infection they could infections—E.coli, C.difficile and MRSA—at very give her. She contracted C. dif. and MRSA. There severe levels. I have had MRSA skin infections, but were occasions when I fed my mum and helped my it also led to blood infections that got into my marrow mum with her personal care, and the things I saw on bone and caused me significant problems, and the that ward haunt me to this day. infection caused sepsis to the brain. None of this was When my mum died, we took the complaint straight anything to do with why I went to hospital in the first to the chief executive. We did decide, whilst my mum place. It was just, being there for such a long time, I was in there—she was in there four months in total— became part of the furniture and witnessed and that we would complain but I didn’t want to do that experienced poor care, cleanliness issues, and the while my mum was there. We decided that, yes, we attitude of staff. I was just put in harm’s way and would complain and we made a complaint to the chief lurched from one disaster to another really. It executive at the time. But, when my mum had died, destroyed my life. there was even no dignity in her death because all of I had a good job, a career, a good family life. Previous the forms that had been filled in for her to go to the to this starting I had had my second child only two mortuary stated that she had every infection going, as months before. So you can imagine being separated we knew, because I had cleaned my mum’s C. dif. and cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 15
1 February 2011 Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine things, she would not be able to be viewed and she system, but it is only as good as the hospital that is had to be buried in a sealed body bag. implementing it. If they are not following their own I met with the chief executive and the complaints systems, it is incredibly difficult for a lay person to manager and they assured me that my mum had no then challenge them. hospital-borne infections and that should not have Mrs Speers: I completely agree with Debra here; I happened. All of the clinicians and the mortuary staff completely agree with her. Robust policy is in place had just filled in the forms incorrectly and she had all over the place and there are various regulatory died of pneumonia. This set off alarm bells in me bodies and everything else in the trusts, but it is not because I knew my mum up to the day she died had implemented. It is not implemented. I didn’t even C. dif. know there was a complaints system. I had no The last view I had of my mum, with my dad and my information about the mental health system. I didn’t brother, for a few moments was her head protruding have a clue about the Healthcare Commission. I went out of a black body bag. I then asked, “What happens to the Healthcare Commission and engineered a now?”, and they said, “We just have to put your mum’s head back in the body bag and bury her meeting in London between the senior management because she is a risk of an infection when she is of the Healthcare Commission and the Mental Health buried.” That led me to very vigorously follow the Act Commission. They offered to take the complaint complaints procedure because I did not think that my outside of the process. Why? What would that do? We mum had died of pneumonia. It took me an refused. We said, “No, we are going to examine the independent investigation and three years down the complaints system and you resolve this complaint line to find out that she died of C. dif. within the system that you have got for it.” And I am still being batted back and forth. I have got lots of Q48 Chair: These are three stories, none of which information on ombudsman’s stats and all the rest of should have happened, clearly. There is clearly it if you want them at any time. nothing we can do to undo what has happened, but what is of concern to us this morning and what we Q50 Rosie Cooper: When you were in hospital or in want to make certain of is that the complaints the service, wherever you were, did you ever see on procedure that the health service operates is one that each and every ward leaflets describing complaints hears voices like yours and is able to respond to them procedures and all the rest of it? in order to ensure that the service learns from those Mrs Speers: No. terrible stories. The question for you this morning that would be of most help to us is to understand what you think should have happened and, given that you didn’t Q51 Rosie Cooper: It is five years plus, six years, want to be there anyway obviously, given that what since I was a Chair, but at that time, when the hospital had happened had happened, what would have been was audited, it was very clear that each ward ought to the best way for the Health Service to have responded have those leaflets. As you have other leaflets, they to that set of circumstances? should be there too. Debra Hazeldine: Ultimately, as Julie has said before, Debra Hazeldine: Might I give you an example? I you want the truth, however bad that can be, if you never knew that my mum had C. dif. and MRSA until have lost somebody or if you have suffered. I felt it I went to the bottom of the bed and read the notes. couldn’t get any worse, having watched my mum die; Nobody ever told me that is what she had. I said, it physically couldn’t get any worse. I wanted “Have you got any information on C. dif. or MRSA?”, someone to follow their complaints procedure and and they said, “No, we don’t think so.” As I walked they did not. They treated it with utter contempt. Not out into the staff room, there were leaflets for the staff at any time did they follow the complaints procedure. and I took their C. dif. leaflet, but there wasn’t I was unaware that I could take it to the Healthcare anything for patients to have. You weren’t aware or Commission. I didn’t have action plans. I had a letter you weren’t told that there was information. I know, that said, “Please find enclosed action plan.” It was to this day, if I had not asked why mum was blank. So it spurs you on because you think, “If you constantly having diarrhoea I wouldn’t have known haven’t even replied to my letter, there is no way that she’d had C. dif. It was not forwarded. The you have implemented anything to stop this from information wasn’t given voluntarily. You had to go happening again”, and that is all I ever wanted. looking for it constantly. Q49 Chair: What you wanted most of all, surely— and correct me if I am wrong—if you initiate a Q52 Rosie Cooper: You will find that every hospital complaint, is for somebody to say, “This is how it does have that on everything, normally. You can’t works and this is how we will undertake a proper have printed leaflets necessarily to cover everything inquiry into the circumstances that you are drawing to always and updated, but they will have a database, our attention.” which is updated. So it is always there and they can Debra Hazeldine: Absolutely. I often say my mum press a button, and somebody somewhere, had they did not die to be a learning curve for anybody, but cared enough, could have given it to you. there has to be a point you can follow. You have to Debra Hazeldine: But none of the gel dispensers be, as I said in my evidence, so bloody-minded, that worked either so, if I couldn’t get gel to clean my it is soul-destroying to follow the current complaints hands, I hadn’t got a cat in hell’s chance of getting system that we have, I feel. It may be a very good a leaflet. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 16 Health Committee: Evidence
1 February 2011 Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine
Q53 Chair: And you don’t know which button to “The Commission for Joined-up Thinking”, who press anyway unless somebody tells you what the could overview everything and just say, “Right, okay, problem is. you have done that. This is ICAS, you can do that and Debra Hazeldine: Exactly. you can do that”, because I wasn’t getting anywhere. Mrs Speers: You are under incredible stress. The last I was literally being pushed from pillar to post, and thing you see, the person you see, is that person there they said, “Well, it’s not me”. It’s like this all the time. and you want to be able to work with them and you It needs a focus and it needs one particular person to want to be able to support the staff to help them, but be dealing with a complaint, a named person, who you can’t do it if you have got all these other things will keep you informed. coming in at you and you don’t know the answers. You have things like trusts not implementing their The fact is you have to look at the truth. The truth is policy, so they don’t report an SUI as an SUI to the something that is there all the time and it won’t go strategic health authority. So they investigate it as a away. You can’t ignore it. So every time you get that CIR and you think, “Well, what’s that?” You are told little question going, “Why? Why? Why?”, you have it is a critical incident review and you think that is to have it answered and there must be somebody there critical: my son died, it is critical, so that must be to answer it and they must know the answer. right. Then in the middle of all of that you are told, Mrs Monte: Can I tell you about my experience back “We are going to tape this meeting for you.” We said, in 2004? When I contracted the first episode of MRSA “Good, because we are going to tape it as well. Is that I was actually in an isolation room at the time for the all right?” Then you find the transcript is different and C. difficile. There was obviously a leaflet available in it takes months to get. the hospital because a nurse walked into my room, The reason they chose a CIR in the first place is flung a piece of paper at my bed in my direction and because an SUI takes longer in policy. Yet this took said, “You’ve got MRSA. Read this”, and turned eight months instead of six weeks. So it goes on and round and walked out again. In absolute shock and on and I don’t want to keep it personal, and I hear dismay, I picked up this piece of paper. It was meant exactly what you say, but it goes on all over the place. to be a double-sided piece of paper with information It is happening. I have lots of contacts with lots of on and they hadn’t taken the time to even look to see people who have had SUIs whitewashed endlessly, if the information was there. It hadn’t been shall we say. There is no alignment to policy. That is photocopied correctly. The woman, the nurse, didn’t why we go to litigation, because in litigation the stay and discuss or talk to me about it. The only bit of solicitors will refer back to rules. The rules are that information on there that was helpful was an infection you have to align; you have to align with guidance control phone number and I used the patient phone and policy. All guidance is optional. I heard earlier on line to phone this number. I was absolutely hysterical that they were saying NHS managers are just NHS because, I thought, the only thing I know about managers, but they have signed the code of conduct, MRSA is what I have seen on the television and I am so what happened with those pledges? going to die. It was an example of the appalling attitude. At no point are you given any guidance on how to Q55 Yvonne Fovargue: Is it important that that complain about this. My family had to complain on named caseworker is independent? my behalf. Obviously, on a local level, I would try Mrs Speers: Absolutely. It is something I was really and complain myself, but my health deteriorated so thinking about last night, and you will have to excuse dramatically that I couldn’t speak up for myself and I me, I have written things down for myself because of would be frightened to speak out. My family had to the meningitis thing and I don’t want to get it wrong. fight constantly to try and get meetings with hospital This would be really effective with PALS, ICAS or staff to try and get issues addressed locally. Nobody with an independent person, because the key to was listening to us. Nobody was giving us advice. My effectiveness in serious disputes in particular is sister-in-law did try and go to the PALS office but something that is independence of funding. If you found them a total waste of time. They would just have a trust, it is “He who pays the piper calls the refer you back to the people that weren’t listening to tune”, I am afraid. I have got too cynical about this. you in the first place. There was no guidance there of The ideal, I feel, would be to fund an advocacy service what to do really. We had to find our own way. It’s like ICAS, say, via the trusts, who are obliged to pay very difficult when either you are suffering because into a pool. Better still, I was thinking, the amount you have lost a relative or you have gone through that they pay into the pool should be proportional to absolutely terrible trauma physically and mentally. the percentage of complaints if they escalate from a Chair: And it is not something anyone should ask you particular trust beyond local resolution. That would to do anyway. provide an incentive to resolve the complaint rather than pass it on to the ombudsman, who doesn’t Q54 Yvonne Fovargue: Thank you for sharing your investigate them anyway. What they normally do is stories with us. There is supposed to be support simply face it down and rely on the ombudsman to available. You have obviously been incredibly rule “No worthwhile outcome”. What does that mean? tenacious in pursuing your complaints. What support Can anyone tell me what “No worthwhile outcome” would have helped you, at that time, to pursue a means? In 98% of cases the ombudsman doesn’t complaint, to make it even just slightly easier? investigate—98%. Less than 1.5% are ever Mrs Speers: For me it would have been one person, investigated and this service costs us £34 million per a named person that I could deal with that was like annum. It’s wrong. It’s wrong. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 17
1 February 2011 Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine
Q56 Chair: Your phrase “A Commission for wider landscape and my son’s, because I am trying to Joined-up Thinking” is one that you might find recurs, keep it separate because there are so many failures I suspect, in our evidence sessions. on the wider landscape as well that it just all needs Mrs Speers: I hope so. looking at. Debra Hazeldine: Can I say that for me it would have helped if somebody had been independent to the Q59 Chair: That is why we are here. hospital? It is the worst thing in the world to see Mrs Speers: Thank you. somebody die like my mum, who was in remission Mrs Monte: In our experience, my sister-in-law did from cancer, and we were told, “Go and tell your mum initially go to PALS, as I have already mentioned. She to celebrate. There is no medical reason that she didn’t feel we were going to get anywhere with them should be in this hospital”, but she still couldn’t as they weren’t very effective and helpful. So my manage the physio. We found out later in an sister-in-law went straight to the chief executive. But independent case review that there were two SUIs that we didn’t find him particularly helpful either. We we had not even been informed about, that they had thought we were doing the right thing in going to the dropped her twice and fractured her ribs and her spine. top man, as we thought. So my mum was never going to get better. The worst thing in the world is to sit in a room with somebody Q60 Chris Skidmore: That’s interesting. You that you feel is responsible for the appalling care that mentioned the chief executive and, although you have your loved one has received. this formal thing with all the acronyms—ICAS, PALS I wanted a voice. All I ever wanted was a voice and and all that sort of stuff—the chief executive is still for somebody to investigate this and to come back and there, and, as the figurehead, people feel that they can say, “We will put this, this and this into the procedure go straight to the top. But then you have the whole so this does not happen again.” I would have felt so self-interest thing going on as well, so often the chief much better if somebody who was not paid by that executive will not be the best person to contact. trust, somebody independent, who had no allegiance Debra Hazeldine: My case was different at that point. to myself or the hospital, but could be completely My mum had passed away so I felt I hadn’t got neutral, could have gone on to do their investigation. anything to lose if I upset him anyway. That, for me, would have meant everything. Q61 Chris Skidmore: No, but it’s interesting that Q57 Chair: Were you aware of ICAS? things like ICAS and this don’t seem to work because Debra Hazeldine: I was aware of absolutely nobody. then the chief executive people— I did take it to the Healthcare Commission and get it Debra Hazeldine: I didn’t know there was anybody upheld, but at that point I had not got a clue. above the chief executive. I thought that was it at that point. Q58 Chris Skidmore: But did you go to PALS with Mrs Monte: I think, eventually, dealing with the chief your first contact with the system? executive led us to make a proper written complaint Debra Hazeldine: No. The week after my mum had and it led us on to the Healthcare Commission. That died and the incident with the body bag we phoned was because at the bottom of that response letter it did the chief executive. It was at Christmas time; my mum say, “If you are not happy with our response”, which died on 13th December. They were struggling to say, I definitely wasn’t. At the end of the day, I wanted “He might not be able to see you.” I felt that strongly information, admission to the wrongdoing and an we said, “Fine. As a family, we are coming to camp apology. Their idea of an apology was to say, “We are outside his office today and we shall not move until sorry that you feel your treatment and your care was we see him”, so we got a meeting with him. It was lacking.” That is extremely insulting and frustrating. not an option. It is that sort of attitude where they won’t listen. You Mrs Speers: My lovely family saved my life because want to engage with them so that you can help them they wrote to the chief executive. They got a legal prevent these sorts of issues happening to other letter because time was of the essence. They were people, and they are just not interested. treating me as a depressive and I had a TB meningitis, That leads you on to going down litigation routes and a renal TB, that was misdiagnosed because the looking further and further, and six-and-a-half-years consultant decided that I couldn’t have it because I down the line I still haven’t got answers; I still haven’t was a middle-aged white woman that lived in a village had the apology. It is just so frustrating. You are on a and didn’t travel very much. “So let’s ignore the merry-go-round where you are passed from pillar to pathology report and just go on that one, shall we?” post and unaware of lots of different organisations that My lovely family got a legal letter and got me could potentially help you. From what I have heard of blue-lighted out of that hospital into a hospital where evidence at the inquiry that I have been involved in, they were stunning; they were absolutely stunning. it is something that I have beaten myself up over, There were issues of cleanliness, and so on, but I can’t thinking, this happened to me in 2004 and lots of fault the staff at all. They were wonderful and saved people have died since. I wasn’t in a position, my life. physically or mentally, to be able to actively do My life has been saved by the NHS, my son has been anything at the time, but you think there are all these failed by the NHS and I have been failed by the NHS. organisations and perhaps I should have gone to more In amongst all of that, there is my personal story, people. It’s just relentless, but, at the time, you’ve got which I have always got mixed up over the time, so to deal with surviving and rebuilding your life, and it that is why I have sent two separate memoranda, the is just so difficult. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Ev 18 Health Committee: Evidence
1 February 2011 Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine
Mrs Speers: I agree with that strongly because I to you differently through complaining—not all, but think—and you sound like you have been left the some. same—the way I feel I have been left is that I am Debra Hazeldine: Can I give an example of that? responsible for mental healthcare because I know the Quite frequently, two or three times a day out of the others can’t be trusted because it is not going to four months that my mum was there, I did go in to happen. I know that it happens. I know there are good help her to feed because food trays were left at the services around, but my experience is all I can talk end of the bed and she had lost so much weight. She about. wasn’t given fluids and she wasn’t given food. I had the staff tut at me and say, “Doesn’t she know the Q62 David Tredinnick: Mrs Monte, do you think the damn visiting times?” So I had to go to the consultant failure to give you an outright apology and giving you and request that he write in the notes that I could visit this kind of conditional apology, “We’re sorry that you at any time, and he did that for me, which speaks didn’t feel very happy about it”, had anything to do volumes really. with legal liability? Do you have any clues as to why Chair: What we have heard this morning speaks you feel they just couldn’t spit it out and say sorry? libraries, and, I am sure on behalf of the Committee, Mrs Monte: It has a part to play, but at the end of the I would like to thank all three of you for very bravely day we went down a litigation route because of what coming and answering our questions and putting happened to me, because we felt the devastating effect yourselves before us this morning. Is there anything and how it changed all of our lives and will continue else? to have an effect on my life in limiting what I can do. We needed compensation to be able to live. My Q65 Valerie Vaz: I have just a final question, and we husband nearly lost his business, I lost my job, my are really grateful because it is very important that we career, and that is without going into the personal hear your stories. I would like to know when you implications of the effect it has on you. started going on the complaints process, whether you Mrs Speers: I described it like you have to find a new have all finished and at what stage you are now. normal because that is the only way you live. You Debra Hazeldine: I started in 2006 and it was upheld have got to find a new normal because your old in 2008 because the hospital was so slow coming back normal has gone and you have got to grieve that life to the Healthcare Commission with their information, that has gone. So you are grieving that life and then but I didn’t get closure, and it was three years on. I you are grieving this life, and then you are grieving didn’t get closure until 2009 when there was an the fact that you can’t get any resolution. independent case review instigated that then told me David Tredinnick: Thank you very much. the cause of my mum’s death was C. dif. That was Mrs Speers: Thank you. what I wanted—the truth—and that gave me the closure. Q63 Dr Wollaston: Did you feel, Mrs Monte, that Mrs Monte: My experience was six-and-a-half years once you had made your complaint as an in-patient of complaining and I still haven’t really got anywhere. you were treated worse as a result of that by the staff? I haven’t got the answers I wanted. I haven’t got the Mrs Monte: In some respects, yes, with some people. honesty. Recently, I have re-engaged with the trust There were some excellent nurses that gave me good and finally I am getting some honest, open dialogue care throughout and we had a very good personal with them. relationship. I got to know a couple of nurses On a litigation front, I am still trying to do something. extremely well at the end of the day. I spent 18 months Obviously, in terms of litigation, I am way out of the of my life in there and you get to watch and learn a time frame for doing anything about it and I feel that lot about what is going on. As I mentioned, nobody is why perhaps the hospital are being honest and open particularly came and physically threatened me as with me now. I think the only justice or closure I can such, but you do feel that your care is going to suffer. get from this is by actively engaging with the inquiry You wonder whether the fact that it has taken them an and doing this today, to try and get a message out hour and several attempts at buzzing to get attention there and hope that people will start listening and is because of the fact that your family are making— learning from my experience so that it doesn’t happen we’ll call it in hospital terms—such a fuss and trying to other people. It’s madness. They could have learnt to raise issues and get basic care needs met. As an these lessons back in 2004 but nobody would listen example, with regard to the nurse I mentioned who to us. threw that leaflet at me, on a later admission that nurse Mrs Speers: There is no way that we should be put came back into my room—I was in an isolation room under this pressure. You are not putting us under again—and she sort of said to me, “I have been off pressure, but there is no way the NHS should have sick because of you complaining about me. Do you put us under this pressure, that we have to come to realise the suffering you have caused me?” the highest level in the land to be heard, to get our voices heard, to get our loved ones’ voices heard. Q64 Dr Wollaston: Oh, dear, the victim. I can talk on my personal case and you are asking Mrs Monte: And that’s like, excuse me, my life has where I am in the complaints process. As to my been turned upside down and you couldn’t even spend personal complaint, litigation covered it within 18 five minutes with me explaining what that piece of months and it was all sorted out. My son’s case has paper means to my life. She has got the cheek to come not been resolved yet. I am still in it. I have been to and say that to me, you know what I mean. There are the ombudsman and I’ve been sent back to the people within the system that definitely would respond Healthcare Commission. They upheld the complaint. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:30] Job: 011252 Unit: PG01 Source: /MILES/PKU/INPUT/011252/011252_o001 HC 786-i - 01.02.11 corrected.xml
Health Committee: Evidence Ev 19
1 February 2011 Mrs Dee Speers, Mrs Nicola Monte and Debra Hazeldine
The ombudsman sent me back and identified the case Q66 Chair: What is important to all of you, as I have manager, who got the complaint to a certain level heard it, is that you need to have clear access. again, got lots of recommendations again, another raft Mrs Speers: Absolutely. of recommendations, and then when I said, “Who is monitoring the investigations?”, they said, “He’s left. Q67 Chair: If something goes wrong, you need to He’s gone for a job with the Care Quality know where to go, have confidence that they are Commission.” independent, that they are going to follow it up and if So this is the biggest problem. You get this moving they make a recommendation it is going to be acted around, and I mentioned in my evidence boomerang upon. bosses, because that is what happens. Just before an Mrs Speers: Yes. “independent” inquiry comes out, you get the boss Debra Hazeldine: The main thing for myself is that it saying, “I think I will go for a job with the Department doesn’t happen again and nobody has to watch their of Health”, or “I will go to the strategic health mum die as mine did. authority and the health transformation team”, but I will still have my full CEO pay and I will still have Q68 Chair: I hope and believe you will have made my full pension.” And that is not right, because the a contribution to increasing the chances—I am not thinking, the head, goes with them, and the flawed going to guarantee you that we will get there—of thinking where they are being rewarded for failure is those outcomes being achieved. That is what we are going with them every single time. Four members of here for and thank you very much indeed. a senior management team have left this, and if there Mrs Speers: This looks like it is the “Ministry of is a very good senior management team there now, Joined-up Thinking” and I thank you for that. brilliant. I will see if they implement the Chair: You are very flattering. I hope it is true. Thank recommendations, but I think the Care Quality you very much indeed. Commission need to implement recommendations because they have inherited the Mental Health Act Commission remit. cobber Pack: U PL: COE1 [SE] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
Ev 20 Health Committee: Evidence
Tuesday 15 February 2011
Members present: Mr Stephen Dorrell (Chair)
Rosie Cooper David Tredinnick Yvonne Fovargue Valerie Vaz Andrew George Dr Sarah Wollaston Chris Skidmore ______
Examination of Witnesses
Witnesses: Ann Abraham, Parliamentary and Health Service Ombudsman, James Johnstone, Director of Customer Service and Assessment, Parliamentary and Health Service Ombudsman, Paul Streets, National Director of Patient and Public Experience, and Chris Bostock, Head of User Experience, Department of Health, gave evidence.
Q69 Chair: Thank you very much for coming this quickly”. One of the benefits of the complaints morning. If I may, I would like to ask each of you to reforms, which came in in April 2009, is that they introduce yourselves very briefly to the Committee give the opportunity for the NHS to learn much more and then we will move on to questioning and quickly and to have immediate feedback from evidence. ourselves, but also from local resolution of James Johnstone: I am James Johnstone. I am complaints. There is a lot in this morning’s report Director of Customer Service and Assessment for the which reads across to complaint handling generally. Parliamentary and Health Service Ombudsman’s Certainly, as we see it, an open rather than a defensive office. response to complaints, so that the learning can come Ann Abraham: I am Ann Abraham. I am the through, is key to everything. Parliamentary Ombudsman and also the Health Service Ombudsman for England. Q71 Chair: Looking at the handling of the 10 Paul Streets: I am Paul Streets. I am the Director of complaints on which this morning’s report is based, Public and Patient Engagement and Experience at the do you feel that the earlier stages of the handling of Department of Health. those complaints reflected the kind of attitudes that Chris Bostock: I am Chris Bostock, Head of Service you would like to see? You used the phrase, I think, User Experience in the Department of Health. in the BBC interview you gave this morning, that the NHS didn’t have “the right culture and attitude” Q70 Chair: Thank you very much. Thank you for towards care of the elderly. Was that a comment only coming to this inquiry this morning. I would like to about the quality of the care or was it also a comment lead off, if I may, with some questions to Ann about the way complaints are handled before they get Abraham. I welcome you to what may well be your to the Ombudsman? last appearance before the Health Select Committee, Ann Abraham: There are elements of both in there. given your— The report specifically talked about elderly people, Ann Abraham: We will see. their care and treatment within the NHS and the lack Chair: Yes. It is timely, given the report that you of compassion, despite all the commitments of the published this morning on care of the elderly and NHS constitution. Very many of the complaints we some lessons about the quality of care of the elderly saw—probably all of them—will have some aspect of that are available to be learnt as a result of your the old system. Certainly some of those complaints investigation of complaints. This is a series of took a very, very long time to work their way through hearings not about care of the elderly but about the the old three-stage system. It was only when they way in which complaints are handled within the came to us, people will say, that they were listened to Health Service. I would like to begin, if I may, by and their stories were heard and acted upon. It is very asking whether you have any reflections based on the hard to look at the complaints that we see now evidence that has been produced in the report you published this morning, but also, on your broader exclusively as if they were being handled under the experience, about the way complaints are handled in new system, and maybe we will come on to that. the Health Service and whether we are willing enough Fundamentally, in pretty much all of those cases, the to learn, and learn quickly, to listen to what patients distress that was caused by poor care and treatment say and to learn the lessons of what they have to tell was compounded by poor complaint handling. us. Ann Abraham: Indeed. The Committee will know Q72 Chair: Certainly the burden of evidence we that I also published a report in October last year heard at an earlier session was that the lower stages entitled Listening and Learning, the first in a series of of the complaints procedure were too often interpreted annual reports on NHS complaint-handling by the patient as explaining the case of the NHS rather performance. In that report we said that the NHS than the NHS listening to the patient experience on needs to listen harder and learn more. I am very the ground. attracted, Chair, by what you say about “learn Ann Abraham: Indeed. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
Health Committee: Evidence Ev 21
15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock
Q73 Andrew George: In relation to this, obviously Q75 Andrew George: Can I check the terminology things are particularly serious if they get to even the when you say “complaint”? I know that a lot of people point of initially making an approach to the are concerned. You talk to patients and their families Parliamentary Ombudsman—yourself. Given the and they say, “I don’t want to complain, but I am situation where a lot of these cases come from patients concerned.” This is a perpetual theme. Is that who are not in a position to necessarily articulate something which is, if you like, caught within the themselves well within the system, does it concern system that you are describing? you that the system and the culture you referred to Paul Streets: Yes. It is a fine dividing line. In effect— does not seem to be particularly receptive to initial and Mr Bostock can speak to this in a minute because expressions of concern or transparency or he has been close to these regulations for 10 years— whistleblowing within the service? The fact that all of we are asking the complainant to define whether they these have come to the Ombudsman in the first place wish to complain or not. Two things may happen to is almost a scandal in itself, is it not? two people. One may wish to register it simply as Ann Abraham: You are absolutely right. It takes concern and one may wish to complain. In some considerable tenacity to see a complaint all the way respects, it should be in the jurisdiction of the through to the Ombudsman. I think that is less the complainant to decide which of those they wish to case now, after the April 2009 reforms, than it was follow. under the previous system, or indeed under any The important point that the Department would wish system of NHS complaints, certainly within my living to make is that we would see complaints as part of an memory. The long-drawn-out independent review overall system of feedback from patients. The truth is system had similar problems. I have been accused of that, by the time it gets to a point where the being an eternal optimist, but I believe very strongly Ombudsman is investigating it, we have already that the new system is well designed and has the failed. What we need to be doing is resolving these at potential to produce quicker, simpler, better outcomes the point where the problem happens. The critical and better feedback than anything in place before now. issue from our perspective, and David Nicholson’s We are seeing some signs of that now in the way we letter stresses this, is to ask trusts what systems they are having a direct dialogue with the NHS and I hope have in place to pick up these things day by day as that James will be able to come in and talk about some they occur and to resolve them on the ground before of the day-to-day dialogue we are having with the they reach the Ombudsman. NHS. So, no, it is not great. There is a huge amount of work to do—and some of that is cultural—but we Q76 David Tredinnick: Expanding on this, what are in a better place now than we have been. were the strengths and weaknesses of the system before the changes in 2009, please? Q74 Chair: Before passing the questioning round the Paul Streets: When we made these changes in 2009 Committee, I would like to bring in Mr Streets, please, there was consequent consultation and one of the to offer the Department’s view on what you have things we specifically consulted on was the change heard so far—reflections on the way the current from a three-stage complaints process, which had system is working. pertained to that point, to a two-stage complaints Paul Streets: I would like to do that. First of all, I process. There was great public support, through the would say the Department takes the report that the consultation process, for that change. One of the Ombudsman has issued today very seriously, and the fundamental problems was that it just took too long Chief Executive of the NHS has written to NHS trusts to get to the Ombudsman. We had a process that went today laying out how he would expect them to deal through three stages. Before the Ombudsman was with that. investigating the kinds of complaints that she has Dealing specifically with the point that has just been investigated, people could be in the system for an raised, it is worth saying there were a number of awful long time. But there were a number of other changes that were made in 2009—and the changes made to try to make it simpler. I have referred Ombudsman has referred to “from three-stage to to the fact, which we clarified, that an oral complaint two-stage”—with the specific aim of trying to get could be resolved at the point of the problem resolution nearer to the point of the complaint. One occurring and resolved much more rapidly. We also was that an explicit offer was to be made to the lengthened the time in which somebody could complainant, at the point of complaining, as to how complain. For example, previously people could only they wanted their complaint to be handled. That did complain within six months of the event happening. not happen before. Previously, it kicked immediately We extended that to 12 months. We enabled people to into the complaints system. That enables immediate simultaneously pursue legal proceedings alongside a resolution. The other part was that we enabled oral complaint, if they so wished. Previously they could complaints, resolved to the satisfaction of the not do the two together. complainant, to take place within 24 hours without a Finally, one of the things we did—and there are a complaint being logged, effectively. But the number—was to make sure that the published reports requirement was that an oral complaint must be were much more action oriented. In terms of a trust something handled to the satisfaction of the indicating how it responded to the complaint, there complainant. The push is to try to resolve things much was a requirement, through the regulations, that it faster because, as the Ombudsman said, patients want indicated the action it had taken and how it had taken to have their complaint resolved quickly. that complaint seriously. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
Ev 22 Health Committee: Evidence
15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock
Q77 David Tredinnick: If you take out a stage, or a help hugely in enabling us to share information with safeguard, perhaps, are you not, in a sense, reducing the public at large and with other players on this broad the safety net? You are speeding up the process but landscape of healthcare quality, not least the Care are you sure that you have not created a system which Quality Commission and Monitor where we can do is making it possible for people to not be able to make our work on individual complaints but they can follow complaints properly? Are you really that confident? up on the systemic recommendations for My second question is on how prepared you were for improvement. That is a big plus for us. I think there these changes. Did they come out of the blue or was is an appropriate recognition of advocacy. I would like this something that you had been preparing for a to see it more explicitly across health and social care, long time? but that is all good. Paul Streets: There are two questions there. As to There are dangers in all of this but all the work that taking out a stage, part of the problem was that the has gone in to developing a coherent complaints complaints procedure in the Healthcare Commission system needs to be hung on to and built on. Whatever was taking some time to resolve. We want to improve the configuration is, whatever the commissioning information sharing between the Ombudsman and arrangements and the provider arrangements are, we other players in the system, and in particular the should not lose that expertise and that learning. regulator, which is now the Care Quality Commission. The critical thing for us is that complaints are learnt Q79 Dr Wollaston: Of the complaints received by from. Through the Bill which is currently going your office, 3% are taken further and investigated. through the House, we are enabling the Ombudsman Could you clarify for the Committee how you triage to share the information that she gleans from those complaints and how you decide which ones you complaints with the regulator much more clearly. The are going to take forward? problem was that it was taking too long as they went Ann Abraham: Indeed. I have read all the evidence from one stage to another. In truth, the Ombudsman that the Committee has had before it and, clearly, my herself was spending an awful lot of time office has some work to do to correct this investigating complaints against the Healthcare misunderstanding about 3% of complaints. That is Commission which just delayed the process even certainly not how I would present it. We see many further. thousands of complaints and James’s job, at the front Ann Abraham: If I could come in on what were the end of the organisation, is to triage those. A strengths and weaknesses, the major strength was that, substantial number of them are premature—there has at least at the end of the line, there was an independent not been a complaint to the GP practice or to the statutory Ombudsman. That was the part of the system trust—and we have to say, “Unless something that did not change. There were a number of things extraordinary is going on here, we think the NHS that did change, as Paul has said, but what I would body should have the opportunity to look at this first.” pull out is that the previous system was fragmented When we have taken out the complaints which are out across health and social care. It was focused on of remit and are premature, we look at about 4,000 to process, things like time limits, but not on getting 5,000 in detail and make our assessment. Again, in good outcomes and good results for people. many cases there will be an intervention, short of an One of the things I stressed very strongly in my report investigation, which will get a good outcome. Yes, in 2005 was the need for advocacy and the recognition that took us down, last year, to about 350 accepted for of the importance of advocacy. Simply, when you investigation. Similar numbers will probably emerge have a patient and their family up against the mighty from this year’s figures. NHS, advocacy is hugely important to level the The message I would give is that we actually look at playing field. Then I would say learning, learning and thousands of complaints and we can get resolution or learning. What followed my 2005 report in the White a good outcome for many of those people without Paper and the “Making Experiences Count” having to go through all that is involved in a formal consultation very much echoed a lot of the things we statutory report. were saying, and we did have a smooth transition. Dr Wollaston: Thank you. There was the question “Did it come out of the blue?” I was saying this morning that I have been in this job Q80 Yvonne Fovargue: Can I return to the point you eight years. I think I spent the first five of them made on advocacy? We heard some evidence that arguing for reform of the NHS complaints system and even with only three providers it was fairly patchy then the next two working on its implementation and and sometimes PALS acted as gatekeepers rather than the transition to the system we have now. A lot of progressing it. How do you feel about the work and a lot of thinking went into that and it has a commissioning of complaints from HealthWatch? Will very solid rationale. As you will detect, I don’t think it improve that, especially with the local authority it should be disturbed because it is a good design, but deciding whether HealthWatch are going to provide what we have to do is make that design work the advocacy or commission a different service? effectively. Ann Abraham: Indeed. There are some issues around the commissioning and it is important to get the Q78 David Tredinnick: If you are arguing conflicts of interest out of there. If I may, I would like passionately for it not to be disturbed, what is your to bring James in on the role of advocacy and what a view on the Health Bill going through the House now? difference it makes to people coming to us. Currently, Ann Abraham: It is a big Bill. If I take a very it is patchy. It is patchy in health and across health parochial view of it, it has some things which will and social care. If this system is going to work going cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock forward, then that emphasis on advocacy needs to stay potential conflict, i.e. they will be policing the social there and be sustained. If I may, Chair, I would bring care delivered by the local authority that is in fact in James to talk about advocacy and how it helps. going to be funding them—their resources, their James Johnstone: It is hugely beneficial in terms of ability to be independent and bite and really act as a the cases coming through, especially from particularly patient representative advocate. Do you see that as vulnerable groups. About one in 10 of the people who a conflict? come to us on the health side of the office are Paul Streets: The position is no different than it is supported by advocacy. We find them very beneficial now. LINks, as they are currently configured, are in terms of helping people to focus their complaints funded through local authorities. In that sense, it has and focus on the outcome they are seeking from their not changed and that funding mechanism continues. complaint, allowing them to put forward their case There is no evidence that LINks have shirked in terms and work with the NHS organisation to try to resolve of looking at social care. To answer your earlier point things locally and then, should it come to the about where that resource is going, most of that Ombudsman’s office, in terms of being able to resource is going to local HealthWatch. It is not going navigate that process so that people are able to make to national HealthWatch, which will have a relatively their best case possible. small budget. One of the things we want national HealthWatch to be able do is to pick up local issues Q81 Yvonne Fovargue: Do you think there is that are arising. One of those will be if a local enough access to support for people to help make a HealthWatch is being compromised in its ability complaint at an early stage, because advocacy comes, properly to scrutinise services locally and to consider quite often, after they have gone through a number of how it responds to that. stages? How many people do you think would give up at the first stage? Q83 Rosie Cooper: Could you tell me what national Ann Abraham: It is difficult to know, isn’t it? Not HealthWatch is going to be doing, then, without a everybody needs an advocate and lots of people have great deal of resources? Does it look like a rubber supporters, friends and family who will help them stamp to you? bring their complaints. From our evidence we can say Paul Streets: We hope it will be much more than a that we see huge benefit from having advocacy rubber stamp and that is the reason— arrangements in place, but the coverage is not comprehensive and consistent. We would like to see Q84 Rosie Cooper: With what resources? It can only it improve. do the job if it has the resources and the personnel. Paul Streets: Specifically on the advocacy point, if I Quite genuinely, most people think they do a good job may, there were about 7,500 cases helped of the as it is, but they set the bar very low because they do 25,600 in 2006–07 that were referred to independent not really have the ability to raise that bar to what complaints advocacy. I, and many of my constituents, would think was an In terms of the future, one of the reasons we have acceptable level in a social care setting. delayed the transfer of the independent complaints Paul Streets: One of the things we are doing now is advocacy from the national contracts that we now run working with LINks to ask that question. When we to locally, through local authorities, by one year, is in did the consultation on the White Paper, one of the order for us to get this transition right because we things that came through very strongly from LINks recognise it is quite a tricky thing to do. It is an was the need for support. They, themselves, were additional responsibility on HealthWatch to have a saying, “Our performance is mixed. We need to be rolling relation to complaints advocacy. We need that more systematic in the approach we take.” Indeed, the time to think about how we best do that in a way that Ombudsman raised that in her own response to the makes sure those people are properly supported going White Paper consultation. One of the things we are forward. What I would say—and the response to the doing now is working with LINks to determine how White Paper made this clear—is we intend to double best national HealthWatch supports them, but we think the funding that is going to HealthWatch specifically it could be a much more powerful body than some of to enable it to provide information and support to its predecessors, not least because it is located in the people. We have explicitly provided for it to happen Care Quality Commission, the regulator. We see real and we are providing more resources for it to happen. advantage in that. In exactly the same way as we are But we do have some work to do over the course of talking about the Ombudsman having power and the next year to think about how we provide a good sharing information with the Care Quality advocacy service going forward in a way that is Commission, we want the same thing to happen with provided locally and commissioned locally through HealthWatch. local authorities consistent with the drift of the Health Bill. Q85 Rosie Cooper: What I would describe as the various health tragedies that we have had have Q82 Rosie Cooper: I would like to ask you about happened under this regime, so I am afraid I cannot something else in a second, but, just on that point, you sit here and acknowledge that the Care Quality said you have doubled the amount going into this. Is Commission is the be-all and end-all. If they don’t it to HealthWatch nationally or to HealthWatch have the resources, you have a potentially big locally? My understanding was that HealthWatch problem. For me, you are putting all your eggs in one locally would be funded by the local authority. If that basket and I don’t think people will have confidence is so, you are expecting them to be in a position of in it. It certainly needs to be much sharper, have much cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock more resource and be much quicker off the mark. My we are having a dialogue on a national level and we own contact with them is that they have been very are starting to see the benefits of it. good, very kind and all of that, but I want an outcome. I want a result, and that takes too long. Q86 Rosie Cooper: I appreciate what you are saying, Shall I go to the question I should be asking? The that complainants, when dealing with issues locally, point I am making should not be ignored by the can simply give up. I say this because there was a Department of Health. It is something which will case in which I was personally involved. The family come back and bite because the autonomy in the was concerned but didn’t want to complain. I Health and Social Care Bill is hugely high and the encouraged them, or I made the contact. The response accountability, for somebody like me, virtually from the PCT was encouraging the family to lay out non-existent. their concerns, which was great—and this is If I might turn to the Ombudsman, who I have had somebody who didn’t want to complain but had contact with many times over the years, I understand concerns. The father was terminally ill and the mother you are retiring and I want to put on the record that I had dementia. Their response was so defensive, so think you have done a magnificent job. much in silos and so incorrect that it added great Ann Abraham: Thank you. distress. It didn’t help. The father then got really upset Rosie Cooper: The number of complaints has gone and they simply gave up. Let me tell you, that was up. The cases that you have taken on have gone down. Liverpool PCT, PCT of the year. I make my point. The intermediary stage is not there. Can you prove Ann Abraham: Yes. I did not vote them PCT of the that more cases are being resolved at local level and, year. if you can, what is your evidence for that? Ann Abraham: I cannot prove anything that is going Q87 Rosie Cooper: Absolutely. But if, when people on at local level because they are not my statistics. are first interfaced, instead of being lifted and going One of the things that has come out in recent times— into it and getting it resolved, they are met with a certainly for us—is that the complaints information at defensive wall, they give up. Do you get much of that? local level is not good. It is not comprehensive and it Ann Abraham: I absolutely agree with you. It is just is not consistent. And that doesn’t help anybody. It extraordinary when you think of so many doesn’t help the NHS bodies, it certainly doesn’t help organisations who would think that sort of feedback informed choice, it doesn’t help the regulator and it was gold dust in terms of improving their service. I certainly doesn’t help people like you who are trying don’t get depressed very often, but there are two to hold organisations to account. Improved complaints things I hear far too frequently. One is complainants, information is one of my particular priorities at the or people with concerns, saying “It’s not worth moment. I have been agitating about that ever since speaking up, nothing ever changes.” The other one is May 2009 when it came home to us. Interestingly, where I hear a clinician say, “I have heard everything. when we brought out our Listening and Learning I’m sorry you are distressed, but I wouldn’t have done report which has a huge amount of data about anything differently.” That sense of “Even though I complaints that come to us, one member of our have had that feedback, I am not going to change my advisory board said, “This is all fascinating, but where practice” or “I am not going to change my behaviour” is the rest of the pyramid? And what is the NHS doing or “I am not going to learn from it” are the sort of to make sure that information is available?” attitudes we need to identify and spotlight, not least Therefore, no, I cannot prove it but I can tell you because we are losing so much by way of patient our experience. feedback when people think it is not worth speaking Certainly 2009–10 was a transition year for us. We up. worked very closely with the Healthcare Commission, as it went into closure, to have a smooth transition, Q88 Chair: Can I bring Mr Bostock in at that point? and our complaints numbers in that year went up— Your title is Head of User Experience at the they almost doubled—to about 16,000. What we can Department of Health. I am very struck by the now do is look at the 2009–10 figures, and 2010–11 evidence we have heard so far. Ann Abraham started as that is coming out. If we see anything, we see a off by acknowledging that, in the 10 cases that were levelling off, we see less premature complaints and the basis of this morning’s report, she felt that in the we see really good responses—I genuinely say this— majority of cases—I hope I don’t misrepresent—the when we engage with the NHS to give them feedback early stages of the handling of the complaint was not about the problems that we see. We pull together satisfactory. Aren’t we in danger of falling into the information on what we call our “frequent flyers”, the trap, exactly as Ann Abraham just described, of the trusts that generate the most work for us, and one of clinician that says, “Our system is okay and we will the things James Johnstone does is to go out and talk carry on doing it,” and not hearing the evidence we to them about the problems we are seeing. He gives started out with, that in real life this system doesn’t them very direct and immediate feedback about how work as well as it should? we think they should improve their performance. I can Chris Bostock: There are two points here. First, we say, as a result of that, that the trust which was top of need to distinguish between the system that is in place the “frequent flyer” list nine or 10 months ago is not and the operation of that system. I fully agree with the even in the top five any more. What I can say is that Ombudsman that there are good performers—there there is an NHS receptive to dialogue with us and we always have been good performers—and there are think that is bearing fruit. So we are doing those sorts poor performers with regard to complaints handling of local meetings, we are doing regional conferences, and other aspects. 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Department, as best we can, clearly with the help of Q91 Valerie Vaz: It is more the closing down of the the experts in the Ombudsman’s office, that we work cases—you obviously have a discretion to do so—and with the poorer performers for them to improve their if you could set out what you take into account when complaints handling. you close down cases. But the fact is you don’t uphold many complaints, do you? Q89 Chair: “Working with” is a lovely euphemism. Ann Abraham: We do. Could we understand how improved performance can be secured? Q92 Valerie Vaz: You do? Chris Bostock: To some degree, as a Department, we Ann Abraham: We do. need to get the messages out. It is not just about complaints handling. It is about the wider aspects of Q93 Valerie Vaz: So the figure that was given feedback, it is about patient surveys and it is about previously is not right? using them. At an earlier stage, the Committee Ann Abraham: If you take all of those 15,000 discussed concerns. Yes, concerns may not fall within complaints and you then look at the number of upheld the regulations, but the lessons to be learned from complaints at the end of it, you get a completely concerns, from comment and so on, are equally distorted figure about upheld complaints. In 2009–10 valuable and should be seen as being valuable and to our upheld complaints were around two-thirds of the assist in improvement of services. cases we looked at. Of the thousands that we look at, There is also a message about the new complaints as I have said, in many cases we will intervene. process. Yes, it is focused on outcomes and it is Perhaps I could bring James in to talk about some of focused on patients. But there are real benefits within the stories where we intervene to get an outcome. Lots that system also for organisations in terms of of people don’t want a full statutory report. They want improving service delivery, which has the potential for a result. resource saving through more effective service James Johnstone: In many thousands of cases, what delivery and so on, and in terms of reputation. As the choice agenda increases, reputation becomes an we are doing is looking at the issues raised by the important factor. We need to get these messages complaint, we are getting independent clinical opinion across. A defensive attitude does not flow from that. on the case and we are talking to the complainant and They do not work very closely together. It is to the the organisation complained of about the outcome organisation’s advantage, not just the person making sought by the complainant. For example, we might a complaint’s advantage, to listen and to use that have a dental complaint where somebody is information to improve. That is a matter, with complaining about the quality of the treatment they feedback in general, that we need to get over to the have received and they have had to go privately as a NHS. result of that. What they are looking for is those costs to be reimbursed. We will get a detailed clinical opinion of that case. If it looks to us like there are Q90 Valerie Vaz: I am sorry if this is directed to you, service failings, we will talk to the organisation, set Mrs Abraham, but you are the focal point for the out our clinical advice and ask them if they feel they person in the street who is at the bottom end of the can resolve matters without the need for a full service of the NHS. Some of the harrowing evidence investigation. Very often they will look at our advice we heard last time was that they felt the system was and say, “Yes, we can see what has gone wrong here,” taking a long time and that you didn’t uphold 98% of and they will provide the outcome that the the complaints. They felt they were battering against the system. Do you have any figures for that? complainant is seeking. In those cases, we can do all that without the need for a full statutory investigation. Ann Abraham: I do. Again, as I have said, we need to explain ourselves better. I might do a follow-up Ann Abraham: That would not feature in the statistics note to the Committee in terms of explaining how the as an upheld complaint, but it certainly would be a numbers in our annual report do shake down. positive outcome for the complainant. Fundamentally, we look at thousands of complaints and we only do these formal statutory investigations Q94 Valerie Vaz: You are in your office going back on a few hundred. In terms of how long it takes, at the to the first source and saying, “This is how you should moment we are completing 89% of our investigations do it better.” within 12 months and we are responding to initial Ann Abraham: Indeed. We try very hard in inquiries within 40 working days in 91% of cases. everything we do to add value. The value we add may As to our customer satisfaction research, I was very be that somebody gets their costs reimbursed. It may disappointed to hear one of your witnesses saying be that we add an explanation about what has gone on there is no customer satisfaction research. Yes, there here, which says “This clinical care was okay”. We is and it is on the website if you want to have a look would share the advice of our clinical advisers with at that. But 90% of people whose complaints we the complainant, there would be explanations about investigated were satisfied with our service overall. what had happened here and we would try and put 70% of people whose complaints we didn’t investigate some of the medical records into lay language. So the were happy with our service. The figures and the added value may be an explanation. Again, it would numbers are there for the Committee if you want to not feature as an upheld complaint but, hopefully, it look at them. would be a better outcome for the complainant. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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Q95 Valerie Vaz: Just to touch on your discretion, doing more in this area, and all the time we can see what factors do you take into account when you close that we are. The simple answer is that it works for us. down cases? It is not there in the legislation. It is something that Ann Abraham: We look at three things once we have we have created. gone through the formal process, if you like, of establishing: yes, this is within remit; it is not ultra Q98 Chair: I wonder whether it works for the vires; there are some complex jurisdictional issues that complainant to receive a letter saying, “We have we need to look at, and “Is it premature?” “Has the intervened but we are not launching an investigation.” NHS body or the GP had a chance to respond to this Ann Abraham: We probably wouldn’t put it in those themselves?” We will go through those formalities terms. and that takes us, usually, to around the 4,000 to 5,000 number. Then we ask three questions. We say: Are Q99 Chair: I am sure you wouldn’t. there any indications here of service failure or James Johnstone: Very often we would be saying, maladministration, in our language? Actually, can we “This is what we have achieved. The organisation has see evidence that something has gone wrong or agreed to provide” either “the recompense,” or, “Here something has happened that shouldn’t have is the explanation as to the care that was provided.”, happened? or “Here are the further questions answered which you If that is the case, then we will look, because this is wanted answered.”, or “Here is the evidence that your how the legislation is framed, at whether, as a complaint has been learnt from locally and one of our consequence of that, there has been an injustice— advisers has checked that this is appropriate.” We again to use the language of the legislation—to the would share it in that way rather than try and use individual. Things go wrong all the time but they our jargon. don’t always result in consequences for the individual. If those two tests are passed, the final one is about Q100 Chair: You still end up saying, “But we are whether we could get what we would describe as a not going to investigate.” worthwhile outcome. Hopefully, we would use more James Johnstone: We would, yes. We would clarify sensitive language than that when writing to the that we are not going to— complainant. But if somebody is saying to us, “We want this doctor’s head on a plate”, “We want this Q101 Chair: Surely that is a trigger to somebody hospital closed down,” and we can’t deliver that, we saying, “There you are: they don’t care.”? would have a very grown-up conversation with the Ann Abraham: We have got some learning to do complainant about what we can and cannot do. If we because we get feedback as well from people like are talking about serious clinical negligence and what yourselves, and indeed from our customers. We somebody is looking for is a package of care for a recognise that maybe we need to listen to our brain-damaged child for life, we would probably say communications people as well as yourselves. Every to them, “You are better off in the courts than with time we produce a report we try very hard to make it the Ombudsman.” We are always trying to see, “Can accessible. These are terms we use for the purposes we add value? Can we get a good outcome for of our accountability to Parliament and to the people?” taxpayer, but we have to get a better narrative to go with it perhaps. Q96 Valerie Vaz: Could that be enshrined in statute, that you have an obligation to go back to whichever Q102 Valerie Vaz: Please take this as an inquiry into provider it is, to say, “This is where it is going how to make the system work, because there are wrong,” rather than going down a complaint process people out there who are very unhappy, and also to and saying that they had done something wrong? Say, save costs, because if they get a resolution then they when you have a finding— do not have to go to litigation except in extreme cases, Ann Abraham: It may not be—I shall get in trouble obviously, when they do. You may or may not be able with my lawyers here—explicit in the legislation, but to answer this question, but did you ever get I do not see that there is anything additional necessary complaints about Mid Staffordshire or Harold in our legislation to enable us to do the things you Shipman? describe. There is a recognition that it is very much Ann Abraham: Not about Harold Shipman. In a way, the role of an Ombudsman these days to do the that pre-dates my time in the office. Mid Staffordshire casework, to do the learning and to provide all that is interesting because, obviously, when Mid feedback, and we put a lot of time and energy into Staffordshire blew up we had a look to see what had collating information and sharing the learning beyond come to us. I would like to say if, heaven forbid, Mid our office. Staffordshire happened again, we would know about it. Under the old system, we had a handful of Q97 Chair: Can I ask a narrow process question? Do complaints that came through to us and they were all you find the distinction between what you described complaints where we were not happy with how the as an “intervention” and what you described as a Healthcare Commission had handled them. We sent “statutory investigation” helpful or unhelpful? them back to the Healthcare Commission to be looked Ann Abraham: In a way it is our distinction and it at again and we never saw them again. helps us to count things, so it works for us. Again, we try not to impose too much of our jargon on our Q103 Rosie Cooper: Could I join in very quickly? customers, but it enables us to know whether we are How do you know that the healthcare organisations, cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock the doctors, hospitals or whatever—when you make Ann Abraham: No, I don’t think it is acceptable. I am recommendations, they may nod and do it once— sure my colleagues in the Department of Health know actually change their practice and become better my views about the state of complaints information organisations? How do you know you are having a by now because I have been bending their ears about future influence? this for the best part of two years. In a way, if I were Ann Abraham: Indeed. I would say two things. In writing the Making Things Better report again, terms of recommendations that we make that are knowing what I know now, there would have been a specific, whether it is recommendations for financial section in there about the importance of complaints remedy or apologies or explanations and so on, we information. It lets us all down, whether we are can check. We have a compliance team that follows consumers who want information to inform choice, through on that and we have reports through on whether we are regulators who want to benchmark compliance. performance, whether we are managers or board One of the things the new information-sharing powers members, Ombudsmen, policy makers or whatever it will enable us to do even better than we do now is to may be. There is a hugely important piece of work to share information with the regulators, whether that is do on improving complaints information. I don’t want the CQC or the professional regulators, often where an industry. I don’t want so much information that we we think the action that needs to be followed through are all overloaded with it and we can’t understand it. goes beyond the role of the Ombudsman. I am not a I just think that consistent, coherent, comprehensive regulator. I don’t have all of the resources or skills to coverage would serve us all extremely well. run an inspection regime and quality and risk profiles. But what we do have is a memorandum of Q105 Chair: Can we hear the Department’s response understanding with the Care Quality Commission. to that question as well? Every time we make a recommendation for systemic Paul Streets: It is a good question. We do think that change, we share information with them about the information should be shared more frequently summary of the complaint and the specific between the Ombudsman and the Care Quality recommendations we have made, and we have an Commission, and indeed trusts. One of the reasons agreement with the Care Quality Commission that why the Health Bill includes clause 185 is that it they will follow up on those recommendations. That enables the Ombudsman specifically to share is the regulator’s job and not the Ombudsman’s, job, information more easily. In a sense, the real issue with but obviously we have regular liaison meetings with the complaints information is that it needs to be used the Care Quality Commission and we get feedback on locally. In some respects, a large number of how things are going. complaints is not necessarily an indicator of bad One of the things I found very satisfying about our performance. One of the things we have encouraged Listening and Learning report, where, for the first organisations to do is to increase the number of time, because of the new complaints arrangements, we complaints as a learning opportunity. The key were able to put information into the public domain question we will be asking trusts is, “How are you about the complaint-handling performance of every resolving that locally?” “What are you doing locally?” trust in the country, is that that information was Frankly, it is not about hard data. It is about uploaded electronically into the Care Quality leadership, culture, whether managers walk the floor Commission’s risk and quality profiles. That and understand what is happening and local interoperability, a phrase I have learnt recently, and resolution. It is not a sterile exercise in analysis of the information revolution, is something that we are complaints data. very committed to. Working with others who have this common interest in improving healthcare, whether it Q106 Chris Skidmore: Surely the data helps, is professional regulators on fitness to practise of though. The Committee were concerned that, in the individual doctors or the Care Quality Commission formal consultation on the Information Revolution, with its role, is something we see as part of a obviously a huge part of the White Paper, there was whole-system approach that we have described as no mention whatsoever of complaints data. Was that “strategic alliances”. Ombudsmen are a bit iffy about a slip or was that anything in particular, that you feel partnerships but we do alliances. complaints data is not relevant to the information Chair: I would like to move the questioning on to revolution that the Department wishes to propagate the impact of the current Bill, the Health and Social elsewhere in order for the benefit of patients across Care Bill. the NHS? Paul Streets: No. We have been talking to the Q104 Chris Skidmore: I would like to return to the Ombudsman about how complaints data could be used question where it was mentioned about improved more effectively because, as she has said, she is complaints data. In the new Bill the Government concerned that it is used more effectively. One of the wants every trust to become a foundation trust, but things we have looked at is the use of complaints data last year one in seven foundation trusts didn’t return within quality accounts. From our experience, looking their complaints data to the NHS Information Centre. more broadly at patient experience, one of the most I want to ask the witnesses, first, what you felt about powerful things in terms of board culture and that, whether you thought that was acceptable and the managerial behaviour, frankly, is not hard dry reasons for that, and, secondly, do you believe that it statistics, which people will always argue with. The should be mandatory, in light of the Bill, for all best boards will often use patients’ stories of things foundation trusts to be returning their data? that have gone wrong, literally stories or videos at cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock board meetings that convey a sense of the richness we need to be able to allow patients to use it for that was in the report the Ombudsman published choice and so on and so forth. The current data are today. In terms of getting boards and trusts to think the number of complaints received, which is, as Paul more seriously about complaints, we think that is far has described, not necessarily a reflector on quality of more powerful than incorporating hard, dry data in a handling. Then there are 25 or 26 categories, of which report on patient experience. clinical matters takes account of somewhere in the region of 50% of complaints. This is a longer term Q107 Chris Skidmore: There is no requirement at issue of using the correct data that will be of use both the moment for any trust to put data online. If you to the organisations, to the Department and to want it, as a patient you have to go and seek that data, individuals. put in a Freedom of Information request, or whatever. Do you not think there should be a duty on trusts to Q112 Chris Skidmore: I have two further points. report that data, perhaps by putting it online? Currently there is no guidance, I think, nationally, Paul Streets: Yes. As you will know, we are looking about how to present data or how to collate it, and I at the responses to the Information Revolution know, Mrs Abraham, in your written evidence, point consultation currently. One of the things we will be 22, you said you had been working with colleagues considering is the role of commissioners potentially from the Department and various coalition bodies and in commissioning for information. You are absolutely that you are hoping to have “meaningful, comparable right that, in terms of trusts being accountable, it is complaints information”. You have said you will be important that information is available and in the presenting a joint statement in the New Year and I public domain and that there is a commitment to wonder whether you are in a position to make any transparency. We need to work through how that will comment now about that and also whether the play into the commissioning system with the Department will consider producing national Commissioning Board and GP consortia. guidelines or guidance on the development of the complaints procedure? Q108 Chris Skidmore: In terms of your own Ann Abraham: I can tell you that there is a joint communication with foundation trusts currently, what statement. I chaired a small working group which are their reasons—the one in seven—for not included representatives from the National Health submitting their complaint data? Service, from the Department, from the Information Paul Streets: I am not sure I can answer that question. Centre, Care Quality Commission, Monitor and Chris, do you know? National Voices—so a number. We have a joint Chris Bostock: When this issue came up—the statement. I have, in the last week, discussed how we technicalities of which I would need to look up, but are going to get signed off with both the permanent we could supply if you wished—the return of secretary at the Department and the Chief Executive statistics, the KO41 statistics, which includes the of the NHS, and I hope we will do that soon. complaints data, came up for review for the year 2006–2007 and the Department of Health contacted Q113 Chris Skidmore: Can we have a copy? Monitor to see if they would sign up to continuing Ann Abraham: Yes, absolutely. We will share a copy to provide these statistics. They felt that making it a with you. requirement to provide was inappropriate, being foundation trusts, but they would not prevent Q114 Dr Wollaston: Can I come back to the individual foundation trusts from providing the data. I usefulness of data? Do you think that if the public suspect that is probably a question that ought to be could see there was a deluge of complaints about the addressed to Monitor rather than to the Department cleanliness of a particular hospital or the rudeness of of Health. a particular clinician that that might not force some change? Q109 Chair: Just to be clear, this is a straightforward Paul Streets: It could be, and Chris will speak to this disagreement between the Department and the in a minute, but one of the things we are doing is Ombudsman. putting more complaints data on NHS Choices. In that Ann Abraham: I don’t know. sense, we are not saying it has no value. We are saying that, as a lead indicator for a problem, it is probably Q110 Chair: The Ombudsman is not sure and the the wrong thing to be looking at. There are other ways Department is shaking its head. I heard the in which trusts should be looking at patient Ombudsman to say you were in favour of more experience, not just complaints. In the way it is aggregated national information as a form of analysed at present it could be better, but it is still accountability. hard data, which makes it very difficult for a person Ann Abraham: Absolutely. to discern. We would be concerned if a trust was penalised because it had a lot of complaints. It could Q111 Chair: We have heard explanations from the be just an indicator of that trust taking complaints very Department as to why that is not appropriate. seriously and encouraging its customers to complain. Chris Bostock: I am sorry, but we need to bear in Chris Bostock: Could I add that in the 2009 mind that at the moment we have to question the regulations there is a statutory requirement on all usefulness of the data that are collected nationally. providers of NHS-commissioned care, not simply The Ombudsman is absolutely right that it is poor, we trusts, to provide an annual report? The annual report need to improve it, we need to be able to benchmark, not only contains data on the number of complaints cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock that have been received, the number that were well Q115 Andrew George: On this issue, the nuts and founded and the number that find their way to the bolts of what is going on, so that I understand, in Ombudsman, but, importantly, it also contains a terms of a complaint which goes entirely through the narrative on, effectively, what are the major issues system and reaches the end of the Ombudsman within those complaints, what has been learnt and process, what is the average time, or the potential what is being done to address those issues. There is a length of time, between the event and the final requirement to enhance local accountability in that resolution of that complaint? Also, you provide that annual report has to be made available to anyone feedback to the services, clearly, in that process. To who requests it. what extent does any of that feedback have resource Ann Abraham: But it is not made available consequences? In other words, it is not just an automatically and they all do it differently. All these attitudinal or a professional issue. It is a question that points are well made. There is no point just having you have identified stresses in the service because of bald statistics without a narrative. I have a report to insufficient resources going in to satisfy your my board twice a year on complaints about my requirement that the service was adequate for purpose. organisation. It has a lot of statistics in it but it also Ann Abraham: Indeed. That is a multi-faceted has the outcomes and it has the learning and what we question. are doing differently as a result of complaints about Andrew George: Two-faceted, I think. our service. You need both those things. It seems to Ann Abraham: I will see what I can do. We have two me that unless you can look at these fundamentals of measures. The first is we aim to give a substantive complaints information in a way which enables you response to what, in effect, is a request to investigate to look across the piece for the NHS, then you do not a complaint within 40 working days. The figure we have comparable information, you do not have are running at there is 91%. Once we have taken a consistent ways of counting and it is no use to case on for investigation, we aim to complete 90% of anybody. The Department is well aware of the those within twelve months. Some cases, by problem, and I hope we can make good progress on definition, take a lot longer to assess and some cases this in the months ahead. take a lot longer to investigate. Those are the smaller Paul Streets: It is a very difficult thing to get right numbers. Those are the broad figures I can give you because the real trick for the Department is getting the today. balance right between data we collect nationally and In terms of the events complained about, one of the data that is used locally for improvement. The things, for me, that was such a joy in the early days problem is if we over-prescribe—prescribe too much of the new system after April 2009 was that we found locally—the game will be producing data for the ourselves assessing complaints sometimes within Department of Health rather than data that is going to weeks of the events complained about. That was help local improvement. If you look at what we are completely new for us. The legislation has within it a doing in patient experience in terms of the Outcomes 12 month timeline with discretion to waive that Framework, we specified an indicator that, for us, is deadline if we think it appropriate to do so. In fact, an overall indicator of responsiveness, “Is your under the old system, we waived it all the time. The service responsive?” It does not try to do all the chances of us looking at something within 12 months diagnostics. The diagnostics are for local resolution. of the events complained about were remote. Now it It will tell you if you have a problem and it is five or is not remote at all and it happens very frequently. It six questions. It seems to us the way to go, as opposed is very good to be going back, talking to witnesses to to where we have been, which is asking 70 questions, these events within memory of the events and where where it becomes a massive administrative exercise the chief executive of the trust is still the same chief and the focus of it is collecting the data rather than executive of the trust, which again would have been a improvement. It is a tricky balance between— rare event under the old system. We are in a different absolutely, as the Ombudsman has said—creating data sort of place. I have completely forgotten the second that is comparable for performance and, frankly, for facet of your question. consumers so they know how one service measures up to another, but balancing it with a real focus which Q116 Andrew George: It is the resource is about data that you can use locally to improve your implications of the conclusions you reach. service. It is a really tricky thing to get right. Ann Abraham: Yes. I don’t think I have any numbers Mr Skidmore asked about guidance. Clearly, one of I can give you on that, certainly today. As we do these the things that we will be doing as we design the way annual reports on complaint-handling performance, the Commissioning Board will operate is thinking those are the sorts of statistics we would want to about how the new regulations play out. The develop. Clearly, sometimes we will make regulations will stay, obviously, with the changes recommendations for financial compensation. We do subject to the Bill, but we will think about what that not do that in every case. We do not do that in the means in terms of guidance perhaps that the NHS majority of cases, and they are not often high. As with Commissioning Board will, for example, issue to so much of our work, what we see is that the taxpayer consortia. Is there scope for us to be more prescriptive would benefit hugely if people got things right first in terms of guidance? That is the question we are time and if people weren’t having to bring their asking right now. But we need to get that balance right complaints right through to the Ombudsman system. because we have seen a situation where trusts focus on providing data to us and that is completely useless. Q117 Andrew George: Could I ask Mr Streets that We want the data used locally to improve things. question? In terms of the conclusions of these cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock complaints, would you agree that some of them not Q122 Rosie Cooper: I used to chair a hospital. I get only have attitudinal, professional and other that. I understand it. The problem is, if you are trying considerations, but some clearly indicate that, in fact, to get “I want to go to the hospital that is the cleanest, further resources are needed in order to address the safest, healthiest, whatever,” but you are hiding the problems that have been identified as a result of the complaints, you are not trusting me to make the best complaint? decision for me. You are making the best decision for Paul Streets: That may be true, and clearly it is for a you as a healthcare organisation. The Department of trust chief executive and a trust board to consider what Health are allowing it to happen by not being open, those might be. The evidence suggests that trusts that by allowing them to hide as foundation trusts and not are good at dealing with complaints also are very good declare. It is just not right. at providing decent quality outcomes for patients. So Chris Bostock: In terms of the national statistics— there is a link between quality and complaints and that was a decision taken by Monitor, not the handling and their ability to address things properly. Department of Health—I appreciate the limitations of the annual reports as described by the Ombudsman. Q118 Rosie Cooper: The future of foundation trusts But in terms of foundation trusts, they are under a and health organisations will be based on their ability statutory requirement to produce details in the annual to attract patients and have a good response or rapport reports of the number of complaints received and the with the commissioners, so won’t there be an internal general narrative of how they have handled them. pressure to keep complaints either down or secret in the world we are about to enter? Forgive me, Mr Q123 Rosie Cooper: Do they publish them by Streets, you used lots of words like “local cleanliness, by staff, for example, by rudeness, or by diagnostics”. Local diagnostics failed Mid what detail? What do they really do? How can one in Staffordshire. You used words like “not over- seven foundation trusts decline to return the prescribe” where, for me, I am asking you whether we complaints data? If they are not doing that, do you go shouldn’t be saying, “Just tell the truth.” Will allowing round trawling each of the annual reports for that level trusts not to report complaints lead to more failed of detail? No, you don’t. patients and shouldn’t a point of principle be that we Chris Bostock: No. tell our organisations “Own up. Tell the truth. Get it Paul Streets: fixed”? The important point you have made, though, is about transparency, isn’t it? The Paul Streets: The answer to your last question is yes, and the regulations that were published in 2009, Department would absolutely get that. That was the alongside the changes to the legislation— reason why we consulted on the information revolution and why we are considering how this will work in the new world with the NHS Commissioning Q119 Rosie Cooper: So it is wrong that trusts do not Board and GP consortia. We need to think through publish their complaints? what that means in terms of what they require. Paul Streets: It is right that trusts deal with things locally quickly with the complainant as far as physically possible. Q124 Rosie Cooper: Will the Health Service be subject to reporting all expenditure over “X” on their Q120 Rosie Cooper: If that is true, how did Mid websites, like councils? Have you considered that? Staffordshire happen? It is just not true, is it? Paul Streets: I don’t know the answer to that question. Paul Streets: Clearly, Mid Staffordshire was a case of Rosie Cooper: No. Have you considered it? this failing. Chair: It’s more suitable for the next point, if I may suggest, Rosie. Q121 Rosie Cooper: But it is not on its own, and how do you stop it happening again? You stop it Q125 Dr Wollaston: Could I move from foundation happening again by shining a light on it, by switching trusts to general practice now? There have been some the light on, by doing, as my hon. Friend over there— concerns about where scrutiny of general practices Chair: Chris Skidmore. You can say it. will sit under the new arrangements. At present, Rosie Cooper: I am sorry, Chris, I couldn’t remember people complain either to their PCT or direct to their your constituency and I was struggling. practice. Could you perhaps clarify for the Committee As Chris said, we are asking organisations now to what the arrangements will be under the new publish expenditure over £500, but not publish proposals and whether you think those are satisfactory whether we have done something really bad or stupid or there need to be changes? or the place isn’t clean. This is nonsense. You need to Paul Streets: The new arrangements will be consistent find a way of working through it. The public will with the 2009 regulations, and Chris can speak to this demand nothing less. in a minute with more detail because he was Paul Streets: I don’t think I would disagree with what responsible for bringing these in a couple of years you said, but where you started from was: Would there ago. In principle, as a complainant, for my GP, if we be a perverse incentive for trusts in a competitive take that example, I can complain directly to my GP environment not to report on complaints? Our as a provider or, if I wish, I can complain to the argument would be absolutely not. Complaints, as commissioner of that service. In respect of primary with any patient feedback, are an opportunity to care, the commissioner will be the NHS improve the service that you are giving. In that Commissioning Board. I have that choice. I can’t do sense— both. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock
Q126 Dr Wollaston: I am sorry, they can complain is perfectly capable of working out what it means to the Commissioning Board, not to the— going forward. It is really good to have this much Paul Streets: Or to the— more permissive information-sharing provision that is Dr Wollaston:—consortia. in the Bill, from our point of view, but certainly we Paul Streets: Because the consortia will not be would expect to be communicating with commissioning primary care. It will depend on who commissioners as well as the providers of the service. the commissioner is. The rule of thumb is you can Paul Streets: If I may, on that point—and it is a very complain in the new procedure, the new regulations good point in terms of feedback from patients being since 2009, to the provider of the service or the really critical to commissioning—we would not want commissioner of the service, whoever that complaints to be the only source of feedback. We need commissioner will be. to bear in mind that it is one in 1600 people who use the NHS every day that actually complain. As a Q127 Dr Wollaston: It will be nationally the source of primary feedback from patients, one of the Commissioning Board or direct to their GP. things the Department is now doing is working on Paul Streets: The GP, in terms of primary care, yes. what we have called the Commissioning Outcomes Framework, as opposed to the National Outcomes Q128 Dr Wollaston: Do you feel there are any Framework. That will set how the NHS changes that should be made to the legislation as it Commissioning Board commissions services, in this passes through the Committee stage? case, for primary care, if we take that example: What Chair: The Department of Health probably can’t outcomes will we expect of primary care? How will answer that question. They will say no. those be defined? That will include, as with the Paul Streets: It would be rather career limiting if I National Outcomes Framework, patient experience, of answered that question. which complaints is a part. The key thing will be that we will look at a spectrum of information coming Q129 Chair: Would Ann Abraham like to answer back from providers on patient experience, probably the question? linked to the GP Patient Survey, which I am sure you Ann Abraham: I am interested in this in terms of will be very familiar with, of which complaints would future-proofing legislation, particularly for us. The be a piece of a picture, but only a piece of a picture fundamental point and one of the things we argued in terms of feedback to commissioners. very strongly for when the regulations were being revised in 2009—and this was something that came Q131 David Tredinnick: To go back to resources, out of Shipman—is that it should be possible to since the Healthcare Commission review stage was complain not only to your GP but to the commissioner taken out, a lot of work has come up to you. Are you of that service if you so chose. The reassurance that under pressure in terms of the number of people you that concept is to be retained does the job for me in have? How many investigative teams do you have? terms of it is not just the person or the practice with Ann Abraham: On our resources, during the whom you have this ongoing relationship. You can go transition we discussed with the Treasury—because beyond that to take your complaint to the the relationship that I have about funding is with commissioning organisation. As long as that is Parliament, with Treasury sanction—what we needed followed through, that would work from our point of by way of start-up funding and what we needed by view. way of additional funding in the first year without the Healthcare Commission in place. We negotiated a Q130 Chair: This is more by way of a comment than perfectly satisfactory settlement and we were happy a question, but it is quite striking that we have been with that—a bit less than the Healthcare in session now for an hour and a quarter and it is only Commission’s complaints function cost. I have in the last three minutes that the concept of recently received confirmation from the Treasury of a commissioning using complaints and information four-year funding settlement based on a submission from complaints has come into the conversation. Up we put in in October. I have no complaints about until this moment, the whole conversation has been resources. around providing this information to the Care Quality Commission, the word “regulator” has been used Q132 David Tredinnick: You didn’t answer the repeatedly, and, as I say, only in the last three minutes question about the number of investigative teams. has the concept that it might be of use to a Ann Abraham: Yes, indeed. I have about 430 staff commissioner been raised. and two offices—in London and in Manchester—and Ann Abraham: It is interesting, but what I would say James’ directorate, which is our customer services and is for us that is automatic. Our legislation, as put in assessment, front end, has about 100 staff. place all those decades ago, provides for the James Johnstone: There are 100 people working on Ombudsman to send copies of reports to the casework, yes. commissioning body. It is already there, from our Ann Abraham: And in terms of the assessment point of view, and in the way we operate there is an teams? underlying assumption that the commissioning body James Johnstone: They are split into 13 teams. will need this information. In the various Ann Abraham: There are 13 teams. In terms of configurations of the NHS since the 1970s, when this investigations, we have Parliamentary work and legislation was put in place, my office has worked out health investigation work, with directors of “What does that mean under the current set-up?” and investigations there. In the health investigations cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 Ann Abraham, James Johnstone, Paul Streets and Chris Bostock directorate I think there would be six investigation Chair: Thank you very much indeed for your managers. There are smaller numbers in the contribution. Thank you, in particular, to Ann investigation teams, and again it makes the point that Abraham for this and previous appearances before this the amount of work that goes on in assessing cases and previous Committees. Thank you very much. and resolving cases at the front end is a very substantial part of our operation.
Examination of Witnesses
Witnesses: David Flory CBE, Deputy NHS Chief Executive, Stephen Walker CBE, Chief Executive, NHS Litigation Authority, and Sarah Albon, Director for Civil, Family and Legal Aid Policy, Ministry of Justice, gave evidence.
Q133 Chair: Good morning. Thank you for coming their operation within the Litigation Authority? Is that this morning. Could I ask you very briefly to introduce the purpose? yourselves and your respective roles in Whitehall? David Flory: It is designed to explore the potential David Flory: I am David Flory. I am the Deputy NHS for that, and the opportunity, without determining that Chief Executive. that will be the outcome. Stephen Walker: I am Stephen Walker. I am Chief Executive at the Litigation Authority. Q137 Chair: Thank you. Could you explain to us Sarah Albon: I am Sarah Albon. I am the Director of how the clinical negligence scheme for trusts Civil, Family and Legal Aid Policy in the Ministry operates? How does it operate currently? of Justice. Stephen Walker: It is a risk-pooling scheme, very closely analogous to a mutual insurance fund. It Q134 Chair: Thank you very much. I would like to operates on a pay-as-you-go basis. It has no tangible start, please, by asking for clarification in respect of reserves. We only ask, in any given year, for what we the Litigation Authority. What is the purpose and the have actuarially calculated we may spend in resolving form of the industry review which is currently in claims in the following year. So it has that huge process and when is it likely to reach a conclusion? pay-as-you-go cash-flow benefit, as it were, for the David Flory: Yes. The industry review, which has NHS. It operates very much on insurance principles. recently started, is an action that came out of the Claims are dealt with on a tort basis as though they Department’s review—indeed the broader review—of were going in front of a judge. Of course only about arm’s length bodies. As to the purpose, it doesn’t start 2% of cases ever actually see a judge for with a preconception or a hypothesis about the determination, with another 2%, perhaps, for approval existing efficiency with which the Litigation Authority because we deal with many patients who are under does its business. It is a way of reviewing the current some kind of disability, whether age or otherwise. We operational form and way of working of the business operate very much on the same principles as a mutual and looking at whether some of that can be delivered insurer would. We investigate, we negotiate, we more efficiently and effectively in a different way. On resolve, we agree, we pay or we repudiate. the timescales to report, in the first instance there will be an initial report by Easter. Q138 Chair: That is available to all NHS trust healthcare providers, both foundation trusts and Q135 Chair: Have the terms of reference of this non-foundation trusts, is it? review been published, and the participants? How is Stephen Walker: Indeed. Over the last few years we the review being conducted? have also provided indemnities to what were Stephen Walker: The terms of reference have been independent sector treatment centres, ISTCs. Then, published, but not widely. We are very happy to make with the successive waves which were brought in, the them available to the Committee, of course. private providers, we have provided an indemnity to Chair: We would appreciate that. them, too, in so far as they were providing NHS Stephen Walker: I don’t think it is a breach of services. confidence to say that the reviewing organisation is Marsh, the major insurance broker, and the work Q139 Chair: But it is not available in the primary began last Monday, the 7th, with a series of interviews care sector? and requests for data. The first feedback session to the Stephen Walker: No. steering board, which is a DH board, although I am sitting on it with my chair, is this afternoon. There Q140 Chair: Could you just talk us through the will be successive review meetings over the next six reasoning for that? or seven weeks. They are already in the diaries. David Flory: Certainly. My hesitancy, Chair, is that for the type of set-up, the centralisation of these Q136 Chair: It is an odd title to have given this arrangements in the mid-1990s when it was review, that it is an “industry review”. Is it, in effect, determined that these schemes would cover the a review designed to bring commercial risk centralisation, I don’t know all the context of the management principles into the operation or to extend consideration of primary care services from that time. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon
But that was the time it was determined that it would Q144 Chair: Your basic proposition seemed to be be the centralisation type. that the medical defence unions “ain’t broke” so there is no need to fix them. Q141 Chair: You might well be telling me that it was Stephen Walker: Yes. my determination and that you should be asking me. Given that it is a policy that is continuing, do you Q145 Chair: It may be a proper question whether the think it is a correct policy in the current framework to Medical Defence Union approach is a more expensive offer this kind of cover for trusts and other private way of solving the problem than the Litigation sector providers but not primary care providers? Authority because it is tax revenue that ultimately David Flory: The statutory basis of the different pays for it. aspects of provision, clearly, is quite different. The Stephen Walker: Yes. If you remember, all those primary care providers, as independent contractors, years back— have their own arrangements for covering the Chair: I don’t. liabilities from their work, which are independent and Stephen Walker: How could you? CNST was created quite separate, and, I believe, quite effective also. The to meet a demand. The newly-emerging trusts had current situation is the continuation of an arrangement realised that they were accepting liabilities or whereby there is a central way, a single way, of incurring liabilities and a solution needed to be found. CNST was that solution. There was no perception, at managing cases on behalf of NHS trust providers, and that time, of a similar problem vis-à-vis the defence a lot of the cases go back a number of years. There is organisations so far as private practice was concerned. still casework being done where the statutory The Department of Health did, of course, absorb a responsibility sits with the Secretary of State great volume of financial liability from the defence following reorganisations that have taken place over organisations at or around that time. previous years. Therefore, the work that the Litigation Chair: Indeed. Authority does, at arm’s length from but on behalf of Stephen Walker: You probably will remember that. the Secretary of State in managing that process, has Chair: That I definitely remember, yes. been very effective in bringing together expertise and in bringing together the financial arrangements that Q146 Dr Wollaston: The number of claims received Mr Walker has described in the way that the CNST under the CNST has gone up by 21% in the last three works. I think it is an effective arrangement for NHS years and we wondered why that was the case. hospital providers. Stephen Walker: And it is getting worse this year, Stephen Walker: Could I add to that, Mr Chairman? massively so. We are looking at perhaps a 25% to There was, of course, when CNST was created—and 30% increase this year, in the year to date. I can’t it was in your time, of course, you are absolutely prove this, but we think clinical negligence claims right—an existing market for GPs and for the private have become a very, very attractive proposition for sector generally through the defence organisations. At claimant lawyers and for claims farmers by virtue of least one of your Members is almost bound to be a the recoverability of success fees and after-the-event member. insurance premiums. The timing is beyond the Chair: She is. possibility of it being a coincidence, we think. As a Stephen Walker: Those organisations provide a range mature market for after-the-event insurance developed of services, including indemnity provision, advisory and became available, the numbers began to rise. A services, representation at professional hearings and significant proportion of our claims are now funded on that kind of thing, which we don’t. There is absolutely conditional-fee arrangements and, when successful, of no reason why we could not take it on, but there has course, there is the potential for an uplift of up to never been a demand for it and I am not aware that 100% and the recoverability of after-the-event there is a perceived shortfall in what is being provided insurance. It is profitable for the lawyers—and this is by the defence organisations. not a criticism of lawyers—as it is a system that allows them to make that profit. They didn’t create it. They jibbed against it, if you remember, when legal Q142 Chair: That world is not part of the industry aid was taken away. But who can blame them for review—the primary care world, the defence exploiting it? After-the-event insurance simply takes organisations. The industry review is focused purely any financial interest out of the equation in so far as on the current scope of the Litigation Authority. Is the claimant himself or herself is concerned. They are that right? actually told, from day one, “You will never have to Stephen Walker: Yes. worry.” We think that is a major factor. That, in turn, has sucked in so-called claims farmers Q143 Dr Wollaston: It is interesting you mention who advertise for claims and, in turn, sell them—their that there is no demand, because certainly it is verb, not mine. I think it is odious, but they sell their perceived as a cost that primary care practitioners claims on. They don’t sell them on the basis of merit. have to bear which their hospital colleagues do not They sell them on the basis of who is on whose panel. have to bear, and some of them would welcome it Excuse my language, but you will appreciate that I being part of the review. feel very strongly about this. Stephen Walker: It would be wrong for me to use this hearing as a sales opportunity, though. Q147 Chair: That is a very direct answer, but it is Dr Wollaston: Exactly, yes. worth drawing the attention of the Committee to the cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon
figures in the brief that we have been given which also the insurance industry, and having said earlier suggest that the cost to the NHS budget of the CNST that I think claimant lawyers are doing awfully well in the last financial year was £651 million. Could you at the moment— give us an indication of where you think that figure is headed? Q154 Chris Skidmore: It would be very interesting Stephen Walker: We have asked for more from the if we could have the figures for the direct trusts for the forthcoming year, in the aggregate about compensation payments— 10% more. Judicial inflation continues at between Stephen Walker: They are easily provided. 10% and 12% per annum. Legal costs continue to Chris Skidmore:—certainly since 2004–05 because I escalate and claim numbers, as has already been am sure you will see the two lines on the graph. observed, are rocketing, after what appeared to be Stephen Walker: I am sorry if you have not had them. three years of a plateau. They will be with your admin team. I am sure they are on our website, but you will have them by the end Q148 Chair: The figure rose from £456 million to of the week—no problem. £614 million, an increase of— Chris Skidmore: That is just CNST. If you look at the Q155 Valerie Vaz: Following on from David’s point, Department’s evidence from the NHSLA it is £821 what steps do you think you could take to stop the million. escalation of costs? Is it something like fixed costs? Stephen Walker: That is correct. Where the figure went up, is that coincidental, or does it coincide with conditional-fee agreements? Q149 David Tredinnick: You described the selling Stephen Walker: We think it very much coincides of claims as odious and many will agree with that. Do with conditional-fee agreements, not just the fact that you have a view about what should be done? Having conditional-fee agreements became viable—and legal, worked in this field for a very long time, what advice even—but because an after-the-event insurance would you give the Committee and the Government? market matured so that the solicitors who wanted to Stephen Walker: I am assuming that the Committee work on that basis could reassure their clients that would, as Parliament has done, continue to deal with they would have no exposure to costs in the event of claims on a tort basis. Many people talk about no fault an unsuccessful case. Yes, I have no doubt about that or a tariff scheme or changing the basis, but assuming that we stay with tort, negligence or breach of duty, at all. causation and then quantum, we made very strong I am sorry, I think there was another part of your recommendations to Sir Rupert Jackson a couple of question. years ago. I am very pleased to say that most of our recommendations—not all, but almost all of them— Q156 Valerie Vaz: Do you think fixed costs is a way were adopted in his report last January, reinforced by forward? What other steps do you think could be Lord Young in, I think, October of last year, and taken? Sarah’s colleagues have just concluded a consultation Stephen Walker: Fixed costs are something that we on the implementation of many of the are currently discussing. Following Lord Young, we recommendations that Sir Rupert made. put together some ideas for a small claims scheme. I had perhaps best explain that, with a small claims Q150 Chris Skidmore: Coming back to the £821 scheme, there is a threshold to be agreed, say, million figure, because you have brought up the issue £25,000. For lawyers who determine that their client’s of lawyers’ fees, do you have the figures for just direct claim is worth no more than that, entirely voluntarily, compensation payments made? Is it possible to they can come into that scheme. We will trade, for separate out the overall litigation costs? that agreement and for fixed costs, a guarantee of an Stephen Walker: Yes, and if they are not before you, early apology—there should always be an apology for we can easily send that to the Committee. something going wrong, but sometimes it is an apology for doing something wrong—an explanation, Q151 Chris Skidmore: I was struck also by your no exposure to costs and within—and we are still evidence saying that there are lawyers in the City of negotiating, I would love to say six months, but I am London who are now charging £818 an hour. not sure we can deliver—maybe eight months a Stephen Walker: That includes the success fee, of guaranteed offer or a detailed repudiation with an course. explanation, shared early medical evidence that we will pay for, and no exposure to costs for the claimant. Q152 Chris Skidmore: Yes. But, at the same time, We have written a paper, but that is the broad-brush, you are able to obtain solicitors for £205 an hour. words-of-one-syllable approach. Stephen Walker: We are indeed, and we have held those rates for several years now. My panel is Q157 Valerie Vaz: Have you considered alternative anticipating no increase from 1 April going forward. dispute resolution? Stephen Walker: We talk of little else, if I might adopt Q153 Chris Skidmore: Is that because you use that phrase. It is often taken to mean mediation, per particular practices? se. We take it to mean any resolution short of putting Stephen Walker: It is, but they are practices which it in front of a judge. As I said earlier, about 96% or have had to adapt their business models to satisfy the 97% of our cases settle by negotiation, demand from consumers such as my organisation, but correspondence, round table meetings and the like. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon
As to mediation, we launched a big initiative some Q162 Rosie Cooper: I was going to develop that. years ago. We won the Public Sector Mediator of the You have adverts saying, “Sign up” and, as the Year Award because we dealt with the post-Alder Hey Chairman quite rightly says, if you have a problem, claims, the organ retention claims, by mediation. But you need to get your correct redress. But, as a chair we find it very, very hard to persuade people to of a hospital, I also saw the other side to that coin. No mediate, for all kinds of reasons. I will bore you with complaint in the Health Service is minor, but where a them if your Chairman will allow me the time, but we complaint of a lower financial magnitude is brought find mediation very, very difficult to have people against a doctor then you might settle, rather against engage with. Again—and there was an invitation to the wishes of the doctor, on the basis that it would be us from Sarah’s people this morning—there is a re- less costly to deal with it now than allow it to take launch of the Government’s drive towards more its course. mediation and more ADR. We are very supportive but Stephen Walker: Are you saying that is what they did it is very hard to suck people into it—very hard. at your hospital? Rosie Cooper: They have done that, via your good Q158 Rosie Cooper: May I ask you what you think selves as well. of the practice of solicitors advertising in hospitals? Stephen Walker: I hope that was when we had Hospitals taking— excesses so that it was your money, not ours. We try Stephen Walker: I abhor it. I cannot speak too not to do that. We try not to make so-called ex gratia strongly in language that would be appropriate to this payments to make things go away even when it would Committee. I think it is appalling. But neither we nor be more cost effective to do so because we worry the NHS in the round necessarily have the control. about the landslide or floodgates syndrome. Nowadays, buildings are very often managed by Rosie Cooper: Absolutely, and I really fear that, but I external organisations. The last time but one I sat in do know there are— one of these rooms, I was asked about a poster in the Stephen Walker: And the fair city in which you were north of England immediately outside the gates of a a chair, of course, is the capital of that kind of claim new hospital. “Did the doctor or the nurse make you and that kind of claim settlements. worse?” was the huge caption, with a man swathed in Rosie Cooper: Don’t be so— bandages and on crutches. That was for a claimant Chair: I don’t know if we have time to go through legal firm. That was on a bus stop, which was that. technically outside the domain of the chief executive. Q163 Valerie Vaz: I want to turn to legal aid, Sarah. Q159 Rosie Cooper: I appreciate where it is I know you are just a spokesperson for the technically outside or technically not your building, Department, as opposed to the Secretary of State, but but there are many NHS buildings, hospitals and I wondered what sort of consultation you had with the surgeries which allow advertising and take a fee for Secretary of State for Health on removing legal aid putting up those posters. for clinical negligence cases. Stephen Walker: The fee is the dilemma. We have Sarah Albon: I am not aware that there was a meeting been asked whether we will match the fee if they kick between the Secretaries of State. Obviously we had the advertising out. the normal interdepartmental clearance process and we have certainly worked very closely with colleagues Q160 Chair: Can I be counterintuitive for a second. in the Department of Health around the twin packages You abhor it, but what the advertising does, in a rather of the reform to civil costs regime, which was initiated provocative way, is to draw the patient’s attention to by Lord Justice Jackson, and the removal of clinical their rights. In the earlier part of the evidence session negligence from the scope of legal aid. It is extremely this morning we were hearing about patients who felt important that those two things are considered they were not taken seriously and the NHS was too together and that the overall impact on individuals willing to brush aside their complaints. then wanting to bring a claim for clinical Stephen Walker: That is a point well made, Mr negligence—the different funding routes and the Chairman, but these adverts are not necessarily from changes that we are proposing—are considered the best lawyers to do the job. These ads, rather like together so that we fully understand the range of claims farmers selling them, direct people to whoever impacts for individuals who want to bring a claim. It has paid for the advertising. They are not is important that those people who have a claim necessarily— against the NHS, or against any other medical provider, should continue to be able to fund Q161 Chair: It is not the fact of the advertising. It appropriate legal advice and assistance where they is the individual of the advertiser that you are more need that. concerned about. Stephen Walker: Yes. And I know for a fact that a Q164 Valerie Vaz: Do you think it is going to have majority of the responses to those posters tend to go a consequence on that? Do you think that is going to to people who are dealing with the Road Traffic Act stop the claims? or employers’ liability claims, for example. We see Sarah Albon: It will undoubtedly reduce some claims, the logic, though, of the NHS advertising lawyers who but, as we have heard, there are some claims that are will then sue the NHS. I sat through this morning’s being brought with absolutely no financial session so I am very sympathetic to almost everything consequence at all to the individual complainant. We that was said, especially by Ann. have heard about the after-the-event insurance. Those cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon insurance premiums are not payable by the individual working on some other alternatives, too, behind the claimant. They are payable only by the losing scenes for the catastrophically injured, whether they defendant, if ultimately the defendant loses. So even be infants or the victims of neurological damage, on the insurance premium is not something, at the how you define that and how we make it fair. We are moment, that the claimant pays. They have no not in the business of trying to deny people access financial stake at all in the proceedings and we do to justice. feel, and Lord Justice Jackson felt quite strongly that the balance of costs in civil litigation has swung too Q168 Chair: Does it not follow from the arithmetic far in favour of claimants and to the detriment of you have given us that if there is going to be an defendants. increasing reliance on CFAs but the total cost of the scheme is going to be less than it otherwise would Q165 Valerie Vaz: But he said, did he not, that it have been, there are going to be fewer claims granted should still be there for clinical negligence cases? at higher cost to the taxpayer because the fewer claims Sarah Albon: That legal aid should? granted are going to be on a CFA basis and therefore Valerie Vaz: Yes. more expensive than they would have been? Sarah Albon: He did say that in relation to Stephen Walker: We are arguing that CFAs’ disbursements. We believe that the amended CFA recoverability should be abolished entirely for clinical regime will still allow claimants with a good case to negligence, save possibly for start-up costs on the bring proceedings, although we do recognise that severe neurological cases. But our first choice would there will be some cases where the early investigative be that legal aid remain for them. stages are so very, very difficult and expensive that they will not be suitable for a CFA regime. We Q169 Yvonne Fovargue: Still on the legal aid area, propose to maintain what we are calling in the I have had concerns that about 500,000 people, it has consultation paper an exceptional funding route that been said, will lose out on legal aid if the changes go will allow people with those very, very serious claims, through. How many of these do you estimate will be who may otherwise be absolutely denied any access clinical negligence cases? to justice in any fair route through to justice, to be Sarah Albon: I do have that figure as part of our able to be funded on an individual case-by-case basis impact assessment, but I am going to have to write to still through legal aid. the Committee because I don’t have it straight in front of me. I can tell you how many people were assisted Q166 Valerie Vaz: But that is the basis of legal aid, on legal aid. We are not predicting that all of those is it not? Really, it should apply to everyone. But you would come out of scope, which is why I am going cannot accept some of his recommendations and not to need to write. The Legal Services Commission— the main one. You have heard about the increase in and this is taken from their annual report 2009–10— costs with CFA. By cutting back legal aid, do you see have two levels of assistance, what they call legal that that would have a consequence to increase costs? help, which is some early advice, and then Sarah Albon: It would do if we didn’t also do representation as the cases go forward towards something about the CFA regime at the same time, litigation. They had 3,288 instances of legal help, of but we believe—and we have worked quite closely certificates granted, in 2009–10, and full with colleagues in the Department of Health—that the representation was granted in 158 cases. That is by overall impact of the introduction of the Jackson volume. proposals will be to see a reduction in the region of By cost, the costs are significantly on the £50 million a year to the NHSLA. representation side because legal help is at a fixed fee, Valerie Vaz: Thank you. generally, of £217, whereas legal representation will vary enormously. Ultimately, of those cases where the Q167 Chair: To be clear, is that something that is Legal Services Commission has granted certificates, shared within the Department of Health, that the the LSC met the cost of litigation in 2009–10—and combined effect of these changes will be to reduce these are historical certificates, you will see from the cost from what it otherwise would have been by £50 numbers—in 2,330 cases, whereas the other side met million? the costs in 1,457. Obviously, generally speaking, the David Flory: As to the specific figure of £50 million, LSC would be bearing the costs where the applicant which Sarah has raised, there are a number of is a losing claimant and the other side would be assumptions and caveats behind that. We can see the bearing the costs where the applicant is a winning potential for a reduction, and possibly a substantial claimant. reduction, in costs but at this stage we are not formulating plans on a specific level of reduced costs. Q170 Yvonne Fovargue: Over 3,000 people had Stephen Walker: I have two points. First of all, of legal help, which is the first stage. From my course, no matter when the changes are introduced, it perspective, that would mean those people would will take some years to work through into our possibly be pushed into a CFA scheme, which we accounts because these are almost, by definition, have heard is a lot more expensive, because legal aid long-tail claims. You might like to know that our will not be available for the majority of those. submission to the MoJ consultation urges that clinical Sarah Albon: The current CFA scheme is a lot more negligence should not be an exclusion but that special expensive, but the proposals we are consulting on at provision should be made by way of legal aid as a the same time are that the uplift, which currently can start-up or a pump-priming potential fund. We are be up to 100% of the solicitor fees, should be severely cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon curtailed and also that the after-the-event insurance after-the-event insurance will no longer be should no longer be recoverable. We are also recoverable from defendants, not that there should be consulting on the possibility that any uplift should be no insurance available for individual applicants. We paid by the claimant, potentially from their damages. would expect to see the cost of insurance probably We think the Jackson proposals will significantly reducing as a result of these changes because what is reduce the cost of CFA-supported litigation. It is being insured is a narrower set of possibilities. worth bearing in mind that where a claimant’s Chair: Could we move on? One of the other areas solicitor who is on legal aid wins a case, their costs which could clearly impact on the cost of these are usually not at legal aid rates against the other party settlements is a more open attitude by NHS providers but they are at full private client rates. The actual as to what is often summarised as a duty of candour. difference in costs between an amended CFA regime and between winning, having been on a legal aid Q173 Dr Wollaston: Yes. I want to ask a question to certificate, should be significantly reduced. Mr Walker. The NHS Litigation Authority issued a circular to its members encouraging them to apologise Q171 Yvonne Fovargue: My other concern is, for when things go wrong. What evidence do you have these 3,000 people or more, how is the new scheme that more NHS organisations are making timely and going to guarantee that they have access to justice? appropriate apologies to patients? That was a concern of Lord Justice Jackson in his Stephen Walker: Probably only less complaints that report. How is the new scheme going to guarantee that they are not, is the honest answer to that. The wording they have some access to justice? At the moment, they of our circular, I think, is the third iteration. We first have chosen to go on the legal aid route because they did that in 1997. I don’t manage the NHS, and I have probably feel more comfortable with that scheme than very limited powers beyond managing litigation. going through a claims management, and so on. What we decided we could do was to remove any Sarah Albon: It depends very much on the type of legitimate hiding behind the risk of litigation by claim that is being brought. There is a huge range of issuing that circular and expressly saying that it would claims, obviously, in clinical negligence and we have never be an honest attempt at an explanation; a good some sympathy with the points that Mr Walker was faith explanation and apology would never be used as making, particularly with young children during the an excuse to avoid liability. Probably everyone on the birth process. But, irrespective of the causation, where Committee is too young to remember that insurance there are catastrophic injuries to individuals, it takes a certificates used to have “Do not apologise. Do not number of years before quantum, and sometimes say sorry” stamped on the back, or words to that causation, can be determined. It is very difficult to see effect. We wanted to undermine that mindset, which how those cases could all be funded through a CFA said “I had better not say anything. They might sue.” regime. We accept that we need some sort of That was the best we could do. exceptional funding mechanism to sit behind, that will remain legally aided, to support those people. On the We have subsequently done road shows and we have other hand, there are much more straightforward supported initiatives from the Being Open initiative cases, with much more minor injuries, where the level that the NPSA promoted. We are 100%, inevitably, of expert report and such things that are needed in behind the constitution which says pretty much the order to support the case are much less and it is much same thing. People are entitled to explanations. There more straightforward for a potential claimant’s are a number of dilemmas, human nature being one solicitor to make a decision about prospects of success of them. No one likes to admit to a mistake, I guess, and give the client advice in a way that doesn’t require and professional people are no different to anyone significant legal aid investment. else. There is also the risk of professional regulatory action. People in your profession do worry about that, Q172 Yvonne Fovargue: Where will that payment understandably. There is also what we would call the come from for the solicitors to give that advice? I latent patent problem in that the clinicians are not appreciate claimant reports are very expensive. That always aware that something has gone wrong at the is one of the issues, that the reports from doctors can instant it goes wrong. If they are aware and they can be extremely expensive and, without legal aid, where remedy the problem immediately, their mindset is not are they going to get the money to get those reports? about “I had better do a full explanation and an Stephen Walker: We think that is one of the apology,” but in some cases people leave the hospital attractions of our proposed small claims scheme, that and the problem only comes to light many years later. we would fund the initial joint instructed report and So the opportunity for that instant “I am sorry. What have simultaneous delivery to the claimant and to us. happened was A, B, C” isn’t there. If the claimant then wants to take it on, the claimant Here I appear to be defending your profession, but I has to find funding in the usual way. But there is no am certainly defending the administration in the trusts exposure at the initial stage until we reach the point as well. Things have improved simply, as I say, of admitting liability and beginning to negotiate or because we see less complaints about a failure to repudiating liability, in which case he or she can take explain. I am not personally convinced that that case onwards, or not, as the case may be. increasingly rigorous regulation, and even statutory Sarah Albon: It is important to remember that various imposition of a duty of candour, is going to make the insurance packages will continue to exist and be difference. There has been a duty to report road traffic capable of being purchased by potential claimants. accidents for eons and people still don’t if they think The change that we are recommending is that the they can get away with it. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon
Q174 Chair: That is not quite the question, though, Q177 Dr Wollaston: Almost the other side of this is it? The question, surely, is whether the duty to argument is that Action against Medical Accidents has report leads to more accidents being reported than the accused the NHS Litigation Authority of sometimes absence of the duty to report. themselves admitting liability ridiculously late in the Steve Walker: I don’t know the answer, I am afraid. process. I wondered how you reacted to that charge. Chair: Mr Flory wants to come in as well. Stephen Walker: I saw that they had said that and I David Flory: Thank you, Chair. As Mr Walker has reacted by saying, “They always say that.” highlighted, there are a number of different strands, if Chair: But is it true? you like, to the theme of encouraging and requiring openness from NHS organisations and professionals Q178 Dr Wollaston: Is there truth in it, though? That working within them. We have referred to a duty to is the important thing. be open in the NHS Constitution, part of the 2009 Stephen Walker: I am, of course, going to address it, Act. The work that the Litigation Authority has done Mr Chairman. We admit liability as soon as we can. is very important in supporting professionals to be It is cost effective to admit liability as soon as more open without there being adverse consequences possible. It stops the claimant lawyers running up an in any subsequent litigation and the Patient Safety excess of bills. The truth is we do not always know Agency’s campaign has been an important part of this. all the facts on day one. We can’t sometimes know all But when we think about how we want to change the facts on day one. If the facts are disputed, whether behaviour and how we want to change the way things they relate to a breach of duty or to causation, there are done and handled in local NHS organisations, it is is an ongoing process whereby the claimant’s lawyer a dilemma. A statutory duty is not necessarily the best produces his or her evidence. We may find that way to do it for the reason that you allude to, Chair. persuasive and admit then. We may get independent We have had an example quite recently as part of the evidence of our own, which may or may not support Government’s, or the Secretary of State’s commitment the original trust argument that they were not liable in to eliminate mixed-sex accommodation. The action the first place. But, believe me, we admit liability as taken in that is to introduce a system whereby, when soon as we possibly can, not least because we have there is a breach of that duty, there is a fine to be paid no brief to deny claimants their remedies. Quite the by the body that has failed in the standard that would opposite. But we do it primarily to stop the claimant’s be expected. In that sense there is a significant and lawyer continuing to run up costs in relation to practical issue for the organisation that has not lived liability. up to and met the standards we expect in terms of a Since Jackson, we have changed our way of working financial penalty, but also the reputational damage that to address this issue. We used to place a great deal of comes to the organisation from that when those things are reported locally. We have seen in a number of reliance on what we were told by the trust. Our trust examples—and we hope to see it in the elimination members will read the reports of this Committee, so I of mixed-sex accommodation—where those sorts of had best say that we still do place great reliance upon things can change behaviour and approach locally. them. But rather than repudiating liability on the basis That is an alternative way forward to a statutory duty of a trust report now, we always, before repudiating and the redress that would come with that for liability, get independent evidence to back that. If we something like this. cannot find the independent evidence, we admit liability sooner. That is an additional front-loading of the costs, but we think that that, first of all, gets us to Q175 Valerie Vaz: I want to clarify the duty of the point of an admission or a sound repudiation candour. You hear this from judges all the time—and I have litigated for the Government. It is when you earlier and also, in the long run, saves considerable get to the stage where a piece of information could costs. I come back to what I said at the beginning, have been given at an early stage. You have it in “They always say that.” judicial review where you pass information from both sides, evidence, etcetera, so everybody knows where Q179 Dr Wollaston: If they came back with they are. The duty of candour really applies to getting evidence where they thought that had occurred, you the information early on. It is not about admitting would look into those complaints. liability. It is so that everyone has the facts Stephen Walker: Every one of the lawyers on their beforehand. panel knows that they have a direct line to me and Stephen Walker: Forgive me, I only conflated it with they are not shy about using that, either in admissions of liability because people used to use the correspondence or by telephone. fear that they were admitting liability as an excuse not Dr Wollaston: Thank you. to do it. We tried to eliminate that excuse for them. It doesn’t make them do it. It just removes one excuse, Q180 Rosie Cooper: What influence can you bring or one barrier. on individual doctors in the process to make their reports as early as possible? In cases where I have Q176 Valerie Vaz: But the idea of this is that you been involved or have watched, it can be that an prevent getting to the judge, who then says, “Why inordinate time is wasted waiting for a doctor’s report didn’t you have this document in the first place? You to come. ought to have had that.” That might have prevented Stephen Walker: Forgive me, are you talking about a extreme litigation. doctor employed at the organisation that is being sued Stephen Walker: That is a fair point. or the independent expert? cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
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15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon
Q181 Rosie Cooper: I am sorry, the organisation that Stephen Walker: I hope the young man behind me is is being sued. In other words, it takes an inordinate writing this down as we talk. Yes. I knew he would do. time to get— Stephen Walker: Sadly, not a lot— Q186 Valerie Vaz: This is a tidy-up question. The Rosie Cooper:—the basic facts. NHS Redress Act seems to have been sitting there for Stephen Walker: You are forwarding one of our a long time and I wondered as to all your views on it. arguments. We would love to be able to apply pressure Given that the much quoted and saintly Lord Justice locally to get reports completed faster and more Jackson has said he approves of it, what steps are you comprehensively. It is a huge problem for us. taking to put it into effect? Stephen Walker: I did say that we endorsed Sir Q182 Rosie Cooper: And that builds into the delay? Rupert’s recommendations in most respects. When the Stephen Walker: Yes, it does. We don’t have the Act was a Bill going through Parliament and when it levers. We are not a commercial insurer who could, became an Act, the redress scheme was not described for example, randomly refuse to indemnify, or or defined and it has come, over time, to mean very threaten to. different things to different people. Some people even think it is a no-fault scheme or an easier fault scheme, Q183 Rosie Cooper: What if you put the premium if you like. It cannot be, because the Act expressly up for that organisation that delayed doctors getting says tort. Given that it has not been implemented in the reports into you by 0.5%, or something, each year? the meantime and we, at the Litigation Authority, You would soon get a perverse incentive to get your never saw the need for a second scheme anyway, I reports in quick. think a small claims scheme of the kind I described Stephen Walker: It is an idea, but it is not a minority earlier, but managed within CNST, would answer all of organisations. of the questions that were being posed by a potential Redress Act without the need for further statutory Rosie Cooper: No, absolutely. instruments. I hope that answers your question. David Flory: That is what our expectation would be. Q184 Chair: Rosie must be right, mustn’t she, that Indeed, the formality of the Government’s position at there is an avoidable cost here? You say that you don’t the moment is that we will wait and see how the new have the commercial lever, but the NHS is not short complaints arrangements that were introduced settle of levers, and the man on your right has quite an array down and look again in the context of the new way in front of him. of working on complaints. As Mr Walker says, our Stephen Walker: We will explore it. expectation would be if we can make progress on a Chair: We can’t just sit here and say, “This is a different type of arrangement for the small claims, problem. We cannot do anything about it.” then that would effectively overtake what the Redress Stephen Walker: We will explore it. We now have the Act was looking to do. weight of this Committee by way of protection when Chair: It remains in reserve without any early plan to the trusts criticise us for it, but we will explore it. implement it. I guarantee— David Flory: Yes.
Q185 Rosie Cooper: It is our money, the public’s Q187 Valerie Vaz: There is some mention in our money— briefing about this road traffic scheme. I know you all Stephen Walker: Absolutely. have reservations on this, so why would you consider Rosie Cooper:—that could go to patient care. I was one thing when— grateful for your comments before because that is Stephen Walker: I know I am going to be taking that where I was leading. I feared that we were going to one. It was Lord Young’s preferred model. jeopardise the people who had major claims with the Valerie Vaz: Yes. new systems, that major claims were not going to be Stephen Walker: He was, I think, frustrated by the met and those of smaller claims would get through the insurance industry, not just by us, and the ability of system because, “Just dispense with them.” We do the litigation world to deliver something quickly, need some levers to say to all the organisations and cheaply and economically that would satisfy many of the doctors involved, “The quicker you report, the the outstanding questions. He had seen the Road quicker we get it settled,” and “Just because you Traffic Act portal, which was introduced 12 months choose to be in Australia for two months, and then go ago, approximately now, I guess. somewhere else and then be too busy and five months Sarah Albon: It was 30 April 2010. later we are still waiting for a piece of paper, is not Stephen Walker: That is close enough. He had seen acceptable because it adds to the cost for everyone.” that working. Although we don’t know how well it is Stephen Walker: Ms Cooper, trust me. I am mentally working yet—the management information flow isn’t drafting the letter as you speak. as good as it might be—it is a model which allows Chair: I think you have scored. both sides to feed into a central point with almost Rosie Cooper: You settle their premiums. Everybody automatic feedback outward. We said, “We will try kills themselves to get CNST Level 1, 2 and 3 and and cobble something together”—to use the language have to go through giant hoops just to get a small we used with Lord Young—“that is akin to it but discount. Here is a huge discount, “If you don’t do which accounts for the additional complexity or what you are required, up your premiums go.” sophistication of clinical negligence,” because RTA Valerie Vaz: Follow that. claims, by and large, do not have causation issues, for cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG02 Source: /MILES/PKU/INPUT/011252/011252_o002 HC 786-ii - 15.02.11 corrected.xml
Ev 40 Health Committee: Evidence
15 February 2011 David Flory CBE, Stephen Walker CBE and Sarah Albon example, and if they do they come out of the scheme process would at least be extremely helpful learning anyway. That is what we did. What we have produced for us because, as you say, there are significant is now sitting with Ms Albon’s senior colleagues, and differences between clinical negligence and road indeed one of her Ministers, and with our Ministers traffic. The current road traffic scheme covers cases and with Mr Flory. It is a proposal that we are where the damages are up to £10,000. Following Lord discussing with APIL, the claimant lawyers’ Young’s report, we are looking at what we can do to organisation, for what will effectively be a clinical extend that to cover cases up to £25,000 of damages. negligence parallel to the Road Traffic Act portal. Does that make sense? Q190 Valerie Vaz: What was your view on the Redress Act? Q188 Valerie Vaz: Yes. Do you all think that is a Sarah Albon: We do not have a different view from good idea? What stage are you at? the Department of Health. The key thing is to do all Chris Skidmore: Can you apply it to the NHS, that we can to get the early fact-finding stages right effectively? If someone has a road traffic accident, and have that early exchange of information. they have a road traffic accident, and you know this Colleagues in NHSLA are focusing on that with the is the point of causation. In terms of the pace of the sort of small claims issue that we were talking about road traffic accident scheme, it is 15 days, another 15 earlier. days and then another 20 days, otherwise you cut Stephen Walker: Ms Cooper might be interested to off— know that it was one of the issues we raised with Lord Stephen Walker: No. We have made it clear we Young and we were going to use his considerable cannot meet those timetables. With an RTA we have political weight to put some pressure on trusts to drive put different periods in, basically— it faster if we got the scheme up and running. Sadly, he has gone so we will now have to use this Q189 Chris Skidmore: Would you be willing to Committee. share that with the Committee? Stephen Walker:—and a further stage for causation. Q191 Chris Skidmore: Coming back to Of course we would—no problem. I am sure my compensation schemes, the previous Health Select young man is writing that down as we speak as well. Committee recommended to the Department that they Certainly the MoJ has it, the Department of Health looked at the New Zealand Accident Compensation has it and APIL have it. How could I possibly refuse Corporation as a model. I wondered if the Department it to this Committee? had made any consideration of that model at all. David Flory: From the Department’s point of view, Obviously, we are talking about the road traffic we are looking to the Litigation Authority and to the accident scheme, but has New Zealand been actively MoJ to take the discussion forward and to see where looked at since the previous Health Select we get to and we will then respond. Committee’s report? Sarah Albon: We are very happy to continue David Flory: I am afraid I could not tell you what discussing it, but we are also mindful of the discussion specific consideration that scheme has been given. I that you were having at the beginning of this session, would need to come back to you further with that. that the NHSLA only covers a proportion of clinical Chair: The Department has had quite a full agenda in negligence schemes. We need to think carefully about the intervening period. Are there any other points what value we will get for having online portals, from the Committee or from the witnesses? No. Thank etcetera, that cover a proportion but not all schemes. you very much. That has been very helpful to us. Anything that we can work up jointly and test the Thank you for coming. cobber Pack: U PL: COE1 [SO] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
Health Committee: Evidence Ev 41
Tuesday 26 April 2011
Members present: Stephen Dorrell (Chair)
Rosie Cooper David Tredinnick Andrew George Valerie Vaz Grahame M Morris Dr Sarah Wollaston Mr Virendra Sharma ______
Examination of Witnesses
Witnesses: Lee Bennett, Assistant Director of Patient Experience and Public Engagement, and Complaints Manager, Cambridge University Hospitals NHS Foundation Trust, Anne-Marie Ledson, Team Leader, ICAS Yorkshire and Humberside, and Helen Marshall, Risk Manager and Complaints Lead, Calderdale and Huddersfield NHS Foundation Trust, gave evidence.
Q192 Chair: Good afternoon. Thank you for joining very well when you have the two combined as one. us this afternoon at this inquiry on complaints and My PALS colleagues who run services separately can litigation. Could I ask you to begin this session by still also play an important role, not to stop people introducing yourselves, please, for our clarification going through the complaints process but to support and also for the record? them. Sometimes you encourage them to make a Lee Bennett: Hello. I am Lee Bennett. I am here complaint as opposed to trying to stop them from representing the National PALS Network. I am also doing so. Sometimes it is the PALS staff who give the here as assistant director of patient experience at patient, or the complainant, the confidence to do that, Cambridge University Hospitals in Cambridge, also as we would if we referred a case on to ICAS. I would known as Addenbrooke’s. not say that that would be my experience of working Anne-Marie Ledson: Hello. I am Anne-Marie either in a combined setting or in a hospital where Ledson. I am a team leader with the ICAS Yorkshire PALS and complaints are separate, where I have also and Humberside region. I am here representing the worked. It has certainly worked as well as it can Carers Federation, ICAS, but I was also involved with where the two are brought together. the “Making Experiences Count” Early Adopter project, where I worked on the implementation team Q194 Chair: But we have to take it seriously, do we looking after the early adopters in the north-east and not, when people who have a complaint—clearly in also on the national workshops to do with GPs and this case they had a very, very serious complaint— prisons and how they implemented the new give evidence that they did feel it was like that? What regulations. is the difference between what happened in Mid Helen Marshall: I am Helen Marshall, risk manager Staffordshire and what happens in your own area? from Calderdale and Huddersfield NHS Foundation Lee Bennett: A lot of it is about the profile of PALS Trust. and complaints, however it is managed in any organisation. We are very fortunate to have a chief Q193 Chair: Thank you very much. The background executive, a medical director and a chief nursing to this inquiry is that a concern has been expressed officer who are very interested in complaints. Our generally to several Members of the Committee about deputy chief nurses will regularly come to my office, the way the NHS handles complaints. At one of our at least once a day, even about an idea or a query, to earlier evidence sessions we took evidence from the say, “What about this ward or that ward?” It is also people who had been involved in the Mid about not only seeing PALS and complaints— Staffordshire events. We heard some very clear and however you address them—as concerns or moving evidence about how, from the point of view complaints but as a continuum of patient experience of complainants, too often the complaints system that includes comments, cards and surveys. They appears as though its first objective is to explain and usually tell you a consistent picture when you line all to defend rather than to investigate on behalf of the the evidence up together. That is what is really complainant. I would like to begin with a general important. It is how the trust organises all of the data question. To what extent do you think that is a general that it has. It is really rich information that is kept problem in the Health Service and how is it best together. addressed in the experience you have from your Helen Marshall: It is about the culture of the different perspectives? Perhaps we could start with organisation as well. If you have an open and honest Lee Bennett. culture in the organisation, and all staff feel and Lee Bennett: From our experience, we have had a believe in that, then you are less likely to get that combined PALS and complaints service since 2001. I feeling of defensiveness when people have issues that do not think I have ever met a PALS manager who they need to address. has said they have been told they should try to stop a Lee Bennett: When it works well, staff refer cases to complaint or that it must sit as a concern and not us in-house, which is a good sign that the service has progress. That can sometimes be a bit of a myth and embedded. They feel they are not trying to hide is not a reality for people doing the job. It can work anything and they think, “This person needs support cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall and we need support in supporting them too.” That is Anne-Marie Ledson: I think we are in a slightly better usually in cases where, again, being open early is what position, unfortunately, than the individual because we works. That is what the individual wants. might have several cases that we are aware of where Anne-Marie Ledson: May I come in there? I would perhaps there have been delays in the complaints agree wholeheartedly with what Helen has said about handling, lack of communication and that sort of having the right culture in an organisation. Certainly, thing. We will bring those particular cases to the from an ICAS perspective, what we find is that the attention of the complaints manager, who will then trusts and GPs, surgeries, etcetera, who are open and look into them, whereas an individual may not have honest and who welcome feedback—whether that be that opportunity. a concern, comment, compliment or a complaint—are the most effective at dealing with complaints when Q199 Chair: I understand that. Is there somewhere they arise. you can go to break down—to change performance? A lot of it seems to be down to how the culture from It all sounds a bit processed: “We know it is not above filters through. If there is that culture of working very well. We raise it with the complaints openness and honesty within the organisation, people manager and we are sure they do what they are are not afraid to put things forward. One of the things supposed to do.” Sometimes that kind of consensual people who come to us often say is that they are approach does not work. frightened to make a complaint because they still need Anne-Marie Ledson: We do try to be constructive in treatment and they are frightened that it will affect what we say to them, and certainly from my own their treatment. If they are met with a very defensive personal perspective, having been involved with the attitude from the staff when they bring up concerns, “Making Experiences Count” project, I try and talk even minor things, then that is going to impact on through the regulations and the best practice that I whether they will put forward issues that are even have come across in the past. I will refer complaints more serious. If those concerns are met openly and managers who say that they are struggling a little bit dealt with, they are more inclined to put serious things to other organisations where I know things are if they do go wrong. working better, because sometimes people need help and support to put new processes in place. Q195 Chair: Do you feel you know informally on Lee Bennett: May I come in there as well and say I the grapevine which trusts, which providers, match think there is, in different parts of the country, a good these standards and which ones do not? network of complaints personnel as well? We have a Anne-Marie Ledson: Certainly, from an ICAS very good relationship with our local ICAS provider perspective, we see the results of trusts that work hard to the point where we have done co-training with at being open and honest and those that are very them, if you like, to say, “What is your experience of defensive, and also within the smaller GPs, best practice? What should a local resolution meeting pharmacies, dentists that sort of thing, yes. look like?” Then we can disseminate that amongst other complaints managers and we do not have to Q196 Chair: The reason I ask that question is that it reinvent the wheel. Even if there is a particular toolkit, is not a unique experience, is it, in the Health Service or whatever, that works well between ICAS and the for insiders to know who does it right and who does experience of the complaints managers, we should it wrong and for there not to be effective means of share that with new complaints managers because it is exposing the ones who are doing it wrong and doing a role that does not necessarily have a specific training something about it? set that goes with it. It is a lot of learning from other Anne-Marie Ledson: Yes. complaints managers, and equally from the valuable expertise that ICAS can have as well. We would seek Q197 Chair: I wondered whether you had any their feedback. thoughts about how your knowledge or your beliefs about who is doing it right and who is not could be Q200 Chair: I will shut up in a moment, but I am reflected in a structure that would improve the concerned about this because you say that it is so often performance of the people who are not doing it right. shaped by culture, which I agree with, but culture and Anne-Marie Ledson: On an informal basis, we do organisation starts at the top. A friendly discussion meet fairly regularly with the different trusts, the with the complaints manager will not get you very far complaints managers and complaints teams. How if the culture does not change from the top. Is that regularly that is depends on the ICAS service in the not right? area, how busy they are and also on the complaints Anne-Marie Ledson: It is true. We do have a system departments. When we do meet, we try to feed back whereby if we have a particular concern, if we are issues that are of concern to us. If we notice there is getting a lot of complaints about a particular service, a definite problem with complaints handling then we can escalate that through our regional specifically, we will bring that to the attention of the manager, service director, who would be able to bring complaints manager as we can. it to the attention of the Department of Health, but it is a long process. To be fair, we do not get all the Q198 Chair: Do you think you have any senior complaints. We do not see everybody who is follow-up? If you bring it to the attention of the complaining. It is only a small proportion who come complaints manager, do they give you the same to us and whom we support through the complaints treatment they give the complainant? process. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
Health Committee: Evidence Ev 43
26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall
May I pick up on something that Lee said? In my own complaints. The PCT will and do hold us to account experience, the training is vital in this case. What we as well if they are not happy with our performance in have noticed is that organisations who train all their terms of the clinical care, but also in our response staff in complaints handling, from the staff on the rate, because, internally, we still, and with our PCT, wards right through to the clinical directors, seem to use the 25-day target for responding to complaints. I have the best results. There are good training tools out know that is not the same everywhere, but we there. In fact, I adapted one that is used regularly with negotiated that with our PCT. the NHS for use with ICAS when I was training them Anne-Marie Ledson: All I can say is that every about the new regulations. That does seem to be a key organisation is different. They all have their own thing. If everybody in the organisation is trained on variation of standards and reporting. With the best customer service and complaints handling, then the ones, it is reported regularly and to the highest level. results are so much better for the patients when there is an issue to bring up. Q203 Mr Sharma: Thank you. How high a profile does PALS have within your organisations? For Q201 Mr Sharma: The middle tier of the complaints example, is your office located in the main hospital system was abolished in 2009. What impact did this reception area and/or is it well signposted? have? Helen Marshall: We have two hospital sites. We have Anne-Marie Ledson: It helped a great deal because a PALS office on both hospital sites. They are both there was a lot of delay with the Healthcare virtually next door to the general office; so they are in Commission. It meant that people were waiting a long a main thoroughfare of the hospital. Yes, I would say time for the issues to be resolved. There is much more that in our organisation PALS have a very high profile. of a focus now on resolving things locally. We have Lee Bennett: I would agree. We have a seven-day noticed that NHS organisations are much keener to PALS service as well. We open on Saturday and resolve things locally and prevent them going to the Sunday to recognise that visitors to the hospital are Ombudsman than they were when it was the not necessarily going to come at 3 o’clock on a Healthcare Commission. So, on two counts, it is an Wednesday afternoon. It is important to give that to improvement: the emphasis on local resolution and, people who have travelled some distance, perhaps to also, it has reduced dramatically the time it takes for visit a sick relative, at the weekend. We have posters a complaint to go through the process if it does end and leaflets on every ward and web pages. We do up having to go to the next stage, to the Ombudsman. promotional sessions in the way that you are talking Lee Bennett: I would agree. We have always about, promoting the service to staff so that they do considered the Ombudsman to be a fair audience, and know to refer cases to us. Like you, we are right next we have taken any judgment or decision on the chin to the main reception as well. It would be difficult to and understood why they have reached the decision miss us, you would think. that they have. As Anne-Marie has said, from our point of view, our complainants sometimes felt that Q204 Grahame Morris: We have received evidence we were the problem and the delays were down to us from the National PALS Network and a number of when it was the Healthcare Commission. You never other organisations suggesting various improvements want to get into a situation where you are trying to to the current complaints system. One of the areas that defend your position, but it was not always clear. They has been identified is that PALS staff and complaints would say to us, “You have not sent the notes off”, or, staff are often on relatively low pay grades and are “You have not given them the complaint file”, or, fairly junior within the structure. I notice, Mr Bennett, “You are withholding information”, when that was not you are assistant director and you are a bit of an the case. For the Ombudsman, I presume it has made exemplar in that you are promoting this integrated life easier too because they are getting things fresh approach. The chief executive is involved and you are and hot off the press. They are getting the actual issue promoting a spirit of openness. Do you think that is a closer to when the events happened, which would factor in how well PALS does generally and how the presumably give the best chance to bring about some complaints process is handled in each trust? positive change. It is positive, from our experience. Lee Bennett: I do. Picking up on Anne-Marie’s point, Helen Marshall: I would agree that it has streamlined in order for PALS to challenge effectively, they have the process, yes, definitely. to be senior staff in the organisation so that if they go out to talk to a consultant or a matron they have the Q202 Mr Sharma: Who sets the standards for how credibility and authority to do so. From our complaints are managed within NHS foundation trusts experience, we see that where PALS staff number and who monitors whether these standards are met? literally one man in a broom cupboard, which is what Helen Marshall: Essentially, the trust board sets the you see in some places, so the sheer volume of work standards in association with the clinical teams as that they have to manage is too much to bring about policy and procedure is developed. In our trust, they a significant change. I would be very concerned for are monitored again by the trust board through the our PALS colleagues, particularly those in the PCTs quality assurance board. at the moment. I am sure the GP consortia are not Lee Bennett: I also report to our PCT every quarter thinking immediately about patient experience and primarily on complaints and PALS concerns with PALS, but my worry there is that there is 10 years’ trends, key issues arising, offering them assurance of experience of organisational intelligence built up actions that have been taken in respect of the more about good and bad practices, etcetera, out in the serious complaints or of the trend that has arisen from community. If PALS does not exist in some form in cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall the brave new world, it is a huge risk out in the Anne-Marie Ledson: I agree with Helen that, quite community. I would say yes to your original question. often, it is a fear that we still need treatment and still I think PALS staff should be recognised as senior need the service. “What happens if I go back if I have managers who can operationally challenge. That is complained?” We often get that, especially with the how we are able to do so. initial calls that we get to our service. People say, “I One thing I picked up from looking at the previous want to complain, but will it affect me when I go back sessions was this notion that PALS want to stop the into hospital or when I next go to see my GP?” process again. I would emphasise that I do not feel To be honest, when it is about a GP, it is even more that is the case. Being on the inside, whilst there is so because there is a particular bond that you have the odd inquirer who will see you are wearing a badge with your GP. He or she is your first point of call and will not think you are independent, in most places when you are not well. The worry is that if you make you have the opportunity, through the knowledge you a complaint you will be treated differently. have of the organisation, to win the inquirer over to Anecdotally maybe, it has happened to a lot of people allow them to give you the chance to work with them. where they are struck off after making a complaint As you have said as well, some people are afraid to and people are worried that that is going to happen, complain. We want people to complain. It does not especially if it is a rural practice and they have matter to us if it is a concern or a complaint. Because nowhere else to go. Having said that, there are other we know who we know and we know how to work reasons why people do not complain. People do not the system for that individual, it gives us the chance want to make a fuss. They do not want to be a to do so. For me, it is important that PALS is an inside nuisance, especially in a hospital setting where they service, as such. I do not meet many people who find are having treatment. They see the nurses working an issue with that. hard, looking after them, and things do not always quite go the way they should, but most of the time Q205 Grahame Morris: I am grateful for that. I they do. They think, “I don’t want to make a fuss noted from your earlier reply that you are advocating about that because they have been really nice to me.” closer integration. In terms of how we define PALS as This is the sort of barrier to making a complaint that the signpost for a complaint and ICAS as an we get. independent advocate, I wondered if Mrs Ledson was Lee Bennett: People do not necessarily believe in the in agreement with that and you felt there should be system. They think it will be a waste of time if they closer integration between the two as a single entity complain. We have had people say, “I am really rather than two separate organisations. shocked that you phoned me,” or, “Gosh, you wrote Anne-Marie Ledson: You mean as PALS and ICAS. to me straight away to acknowledge it.” People have Grahame Morris: Yes. such low expectations of the process that they are Anne-Marie Ledson: It is a difficult one. When we surprised with anything quite positive that you do for have done focus groups, etcetera, one thing a lot of them. our clients have said they value is the independence of ICAS. It is not a part of the trust organisation, Q207 David Tredinnick: I would put it to you that whereas PALS is. That does not mean to say that the problem is that the medical staff pretty much stick PALS cannot do a good job and cannot work with together and are on the side of the system, generally patients to achieve resolution to their problems, but speaking. They do not like complaints, and that is why when we speak to our clients it is the independence there is patient reticence about coming forward. There that they value. is the fear, perhaps, of a doctor being struck off, but there is that feeling that they are going to group Q206 David Tredinnick: The National Audit Office against you. Do you think that is fair? statistics show that 13% of patients are dissatisfied Anne-Marie Ledson: Certainly from my experience, with the service they receive, but only 5% complain. it is. People have that perception. I am not sure how Why is that, do you think? Perhaps you would each widespread that is. It can be in some organisations, like to express a view on that. and it is certainly a perception that people have. They Helen Marshall: There are a lot of reasons why become very cynical. Certainly, as the process goes people may be dissatisfied and not wish to pursue a along, our clients will say to us, “I don’t know complaint. One of the reasons has to be that people whether it is really worth taking it forward any more.” feel afraid of what will happen next time they come into hospital. That is something we need to recognise. Q208 David Tredinnick: That is why there is fear. Sometimes, if something has gone wrong in The fear is that those people who are supposed to be healthcare, it is a very distressing experience and treating you are suddenly going to give you the black people do not always want to face that again through spot and say, “Right, we have got you marked.” the process. What is possibly more important is how Sometimes you hear of that situation with the police. you gather that information rather than letting people That is a worry. leave the service and have to go away and make a I would like to run on to another point, Chairman, if complaint. I think it is very much to do with the fact I may. Do you think, on occasions, there is a whole that, if people in your care are not satisfied with the mass of complaint moving around, that a whole lot of care that they are receiving, then we should be picking people are not very happy, and the practitioners think, up on that and taking the process to them, if necessary, “Right, we have to get this whittled down to rather than making them come back in and do something that is manageable”? So they say, “Okay, something about it. you have a concern. Come round the corner and let us cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall talk about it. You might have a complaint.” You are has mentioned the board. How do your boards know trying to reduce the size of the problem so that only a what is going on, on the ground? What reports go to few get through the eye of the needle to have them them directly relating to complaints? You talked about addressed. Is that a no? the chief executive enabling people below, but the Lee Bennett: I cannot say I have experienced that. reality is that it should be owned by everybody, and Helen Marshall: If I may pick up on your point, I that includes the board. They should know it as well have to say I think it was a sweeping generalisation as anybody else knows it. that you made about medical staff. I am grateful for the comments you made about GPs for this reason. Most people think that there are not a Q209 David Tredinnick: I am merely provoking you lot of complaints about GPs because they are into a response, but you talk about sweeping. We have wonderful. The reality is that the first connection with already heard about the man in the broom cupboard, the Health Service of a patient, an ordinary member if I may say so, the person who is responsible for the of the public, is always going to be that GP. That complaints who is somewhere down the corridor and relationship is so close. For them to complain is like we do not know where to find him. Who mentioned asking them to hit Mount Everest, and I know as I the man in the broom cupboard? have tried to encourage people to do it. Because they Lee Bennett: That was me. are so close and that is where they are going to have David Tredinnick: There you are. That is a sweeping to go next week or next month, there is no way they generalisation. We can mix our metaphors. are going to complain. It is a big reality that people Lee Bennett: In the 10 years or so that I have worked think the lack of complaints against GPs is because in this job, the medical profession have changed their they are all wonderful, and that is not the case. So I attitude towards complaints a lot. A lot of that relates am grateful for that comment. Where is the to the training they have, the new breed, if you like, accountability? Where is the board in each of your of clinical directors, for example. We get them very organisations? early and they have a different enthusiasm for Helen Marshall: I thought we had answered that patients’ experience. question earlier. Rosie Cooper: Have I missed it? I apologise if I have. Q210 David Tredinnick: There is another reason, Helen Marshall: I thought so. surely, that they are fearful, because the complaints Chair: There was a strong sense that it is all about procedure has improved and, if the doctors and the the culture within the organisation, and the culture nurses do not file complaints properly, they will get starts from the top, but it is also about reporting the clobbered. data to the board as well. Lee Bennett: Personally, I wouldn’t describe them as fearful. There are those who are very interested in the Q212 Rosie Cooper: Exactly. As the Chairman said, process, in patient experience, and learning. Through how does your board know? What data do they get? our membership office we do focus groups. There was Lee Bennett: The director of patient experience, who a focus group in rheumatology recently and 15 is sitting behind me, produces a patient experience consultants turned up, which is unheard of. They report which features, as I said, all of the strands of genuinely were interested to see what the patients in patients’ experience, and I heard you speaking in a their specialty had to say and to see how they wanted previous session about, “That is not just numbers.” to shape the service. Personally, I would not For me, I see reports that are quite meaningless. When necessarily endorse what you are saying. I think it has it says you have had seven complaints about changed a lot. communication, that does not tell you anything. What Anne-Marie Ledson: It all goes back to the culture of you need is some narrative that says, “That is what the organisation and what your colleague was talking this complaint was about and this is what we have about before, about how complaints are perceived and done about it.” That is the sort of content that goes the level of importance attached to complaints by the into those reports to the board, including the areas chief executive. A complaints manager who is a very where they are happening. low grade does not have the same control and power over how complaints are handled in a trust or an NHS Q213 Rosie Cooper: Every month. organisation. Certainly, we see from the organisations Lee Bennett: Yes. where complaints managers and complaints are valued Helen Marshall: Ours goes quarterly. for their feedback that the level of good responses that Lee Bennett: Quarterly, I would say, but it breaks it come to our clients is far higher than those where it down by month. is a very defensive attitude. Where the complaints Helen Marshall: But we probably didn’t answer it in manager is perhaps at a much lower grade, where the that detail, to be honest.1 complaints team, who are perhaps chasing the people Lee Bennett: May I say one other thing about doing the investigations and the directorates for accountability? What we do as well through the responses, have no authority, then there is a problem. consultant revalidation process is that I produce a If they cannot rely on their chief executive, directors complaints report for every consultant for their of nursing or clinical directors for support to get those responses out, then there are problems. 1 This comment was made in response to a comment from Rosie Cooper apologising if the information had previously been covered. Without Rosie’s comment it appears that I am Q211 Rosie Cooper: You have talked about referring to the information reported to our Board which I executives. In terms of accountability, not one person feel is misleading. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall appraisal, whether they like it or not. It goes to their support team, where, if we are seeing individual areas clinical director and they see it, but it is not for them that are frequently coming up, we take the decision to select which complaints they wish to discuss with away, if you like, with the support of our chief their clinical director at appraisal. It is all of their executive, and go out and deliver facilitated sessions complaints that I put forward, again, hopefully, to using the real complaints as the basis of the training, show that they are open in discussing their complaints but equally getting feedback from the staff on what it but also that there is some accountability if a is like working in that particular ward or clinic at that particular consultant is having more complaints than time. That then formulates into an action plan for that somebody else or they are about the same thing. particular area, which is reported to our board and to our patient experience committee. It does not drop off Q214 Grahame Morris: Is it usual or quite unusual that agenda until we are satisfied that all of their to do that? actions have been implemented. We have done five of Lee Bennett: I can only say what is usual for us. those interventions now. It is a relatively new process Helen Marshall: We do that, yes. We do a report for for us. In the example of the department of medicine the consultant when they go into appraisal. for the elderly, where we did have a problem, the Anne-Marie Ledson: As far as the GPs are concerned, number of complaints that they had massively it is my understanding that any complaints made about reduced; staff turnover reduced; the numbers of the GP are brought up in their appraisals as well on student nurses who were asking to come and work in an annual basis, since the new GP appraisal system DME, as we call it, went up. The whole process came in. seemed to work in that particular area, so it was not relying completely on the operational areas Q215 Rosie Cooper: Who would manage that then? themselves. We took it to them, if you like, so there There is a complaint about the GP and it is inside the are different ways. practice. Where would that go? Anne-Marie Ledson: It depends. There are two Q217 Valerie Vaz: You set up this new patient options in relation to complaints about GPs. You can experience programme, but you are still calling it make a complaint directly to the GP practice or you PALS. You still have a PALS section. can make a complaint to the PCT. A lot of people do Lee Bennett: Yes. make a complaint to the PCT, for the reasons that you outlined before, but it may still be dealt with within Q218 Valerie Vaz: Are they two separate things? the practice, depending on what is most appropriate. Lee Bennett: No. It is all part of the same team, if The complaints are held within the practice. Then the you like. GPs have their annual appraisals and it is brought forward. My understanding is that it is the PCT who Q219 Valerie Vaz: How many do you have in your will organise those appraisals within their areas, but I team? am not 100% certain on that. Lee Bennett: The way our process works is that we have two staff on any given day dealing with all the Q216 Valerie Vaz: I want to pick up on something inquiries on the phone and people walking through the you said, Mr Bennett, and you are being held up as a doors, and we have sometimes 50 or 60 people every kind of model for this new complaints world. It is a day. I will have one member of staff who is couple of things. When the complaint has been made responding, pulling together all of the information for and you have talked to the consultant, or you have the complaint response. We do not have them written, passed it up, how do you monitor—and this is if you like, by the operational areas. They give us the something for all three of you—whether something information and we put the best response together we has been done about it and whether practice has can and then challenge on any issues that we have. improved? What are those trigger mechanisms so that Then we have two administrators. It is a total team of you know you can report back to the complainant that seven but in different bandings doing different parts everything is okay? of the role. We are all doing all aspects of the PALS Lee Bennett: They happen in different ways. At the and complaints role, interchanging. lower level, it is through the clinical governance meetings for that service delivery unit. For us, we Q220 Valerie Vaz: When it is something huge like a would have maybe 40 or 50 specialties. So we negligence case, how do you deal with that and when produce a report of all of the PALS’ concerns, do you refer to ICAS? inquiries and complaints. That report goes to that Lee Bennett: We have a really good relationship with department’s meeting and a member of the PALS staff our ICAS. For everyone who makes a formal goes to make sure they are discussed. We check the complaint, in our standard acknowledgment letter we minutes of that for all sorts of different reasons, to include reference to ICAS and an ICAS leaflet. We do ensure that they are properly discussed as a group, to not want to put too much slant on it. We want people monitor their actions. At a level up from that, they go to understand what ICAS is as sold by them. We do in their divisions, so surgery, medicine, neurosciences, another sell at the point that we go to a local for example, and we then expand that to include resolution meeting. We find ICAS really helpful at claims and survey results, again to ensure that all of that stage. If someone has not engaged with ICAS by the strands are discussed. the time we do a local resolution meeting, we From the point of view of the bigger picture, we also emphasise the support that they can give, helping do something which is called the patient experience them write an agenda, coming to the meeting, cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall preparing someone and acknowledging how scared a so that they are sent out to be action planned. Then complainant can be. We will talk to our ICAS we monitor that those actions have been completed. advocate and ask whether it would be better if we We do not close them down until we have the come out and see this complainant at a GP surgery or evidence that that has been done. We also assess at their home, recognising it could be too much for issues when they come in. We have different levels of them to come back. It depends on the individual case. investigation depending on the severity at which we assess that. Q221 Valerie Vaz: What I am trying to get at is, are It is interesting to hear how you almost grade at the you getting the full range of complaints? end. We grade when something comes in. We grade Lee Bennett: Yes, absolutely. on the information that we have at the time that it is given, but then it will be interesting to look at it again Q222 Valerie Vaz: For instance, with regard to after investigation and say, “From a service point of someone who died accidentally, what do you do with view, was it as serious as it first appeared or was it that? Are you triaging the complaints? worse?” Lee Bennett: What we tend to do is the traffic lighting at the point we are closing the complaint down Q226 Valerie Vaz: In your role as ICAS, you because it is the point at which the investigation is obviously refer cases to the Ombudsman. How do you complete. We believe that gives the truest reading of find that process and is there anything that could be what the severity of the complaint was, but it is more improved? how we escalate during the investigation in terms of, Anne-Marie Ledson: We do not actually refer. We “Does this need the clinical director? Does this need advise clients that they have the option to refer the the divisional lead nurse as opposed to the matron?” issues to the Ombudsman if, at the end of the local For us, the triage is who we are asking to lead on the resolution process, they still feel unhappy about what investigation. From our SI point of view, we include has happened to them. It is often quite difficult to do the family, the complainant in the SI process. We do that because of the remit of the Ombudsman and her not send the serious incident report to the PCT or the remit in relation to looking at how the complaint has SHA until we have met the family to say, “This is a been handled primarily and whether the organisation draft report. It stays draft until you have seen it so that has done everything that they could possibly do to you can contribute to it, because what you remember resolve the issue. Quite often our clients is crucial and may add something that we do not know misunderstand the role of the Ombudsman and feel about of which we are just not aware.” Again, we that she can go and investigate everything right from take each case on its merits, if you like. Does that the start all over again. As we know, there are very make sense? few cases where that does happen. We will encourage our clients to think very carefully Q223 Valerie Vaz: Yes. I am wondering if you have before referring to the Ombudsman, to see whether ever had a complaint from a member of staff who has there is anything else that can be done locally with come to you and said that they have concerns. Is that the NHS organisation involved. Invariably, the gateway open? Ombudsman process is quite long drawn out. Lee Bennett: Yes. About their care? Sometimes, if it is premature, then obviously the referral is returned for more action by the NHS Q224 Valerie Vaz: No, about what is happening in organisation, the trust or the GP surgery. the hospital. Lee Bennett: Yes, absolutely. Again, the patient Q227 Valerie Vaz: Do you think that remit should experience support programme that I described is a change—that those terms of reference should change? way of doing that. It is a chance for staff to offload Obviously, the public perception is not what is and say, “We have had this problem for weeks or happening and they do not understand that really. So months”, etcetera. Thinking about Mid Staffordshire should that be changed? as an example, I am sure a lot of the staff on the Anne-Marie Ledson: It is not for me to say what the ground there could have told you what was happening Ombudsman should be doing. a long time before it became apparent. We are trying to recognise that our staff on the ground have a lot of Q228 Valerie Vaz: I just want your opinion on how the answers if you give them the opportunity to have to make it work, because complaints have gone up. a voice. That is what we are trying to do. Obviously, you need to know why, don’t you? Anne-Marie Ledson: The key is in understanding and Q225 Valerie Vaz: Yes. Sadly, one of them has come being clear about what the Ombudsman can and to Walsall Manor Hospital. For the other two, have cannot do. One of the biggest problems that our you ever had a member of staff coming to you and clients come back to us about is the fact that the saying— Ombudsman may make recommendations but they are Helen Marshall: Yes, through PALS. They will take not always followed up. Things don’t actually change. concerns in through PALS, often, if there is something To be honest, it is the same within the local resolution they are not happy about or that they are concerned stage. Action plans are proposed, changes are about. One of your original questions was about how suggested that “This will happen”, and then nothing you make sure that action is being taken to improve changes. This is a big problem that a lot of our clients things. One of the things we definitely do is to put face. Sometimes people come back to us 12 months any recommendations into an action planning process later and say, “I complained about this last year. I have cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall gone back to the same department and the same things Lee Bennett: A lot of it is the way you capture your are happening, whereas in the letter I got they said data as an organisation. If I have a team of five or six they were going to change the processes.” staff, an individual person, as you have described, could come at different people in different ways in an Q229 Valerie Vaz: What is your role with the very effort to get a different answer to the same question. nice PALS and the patient experience? How can you It is about making sure that you have captured make it work, because obviously you know about it? information about someone that you are considering Can you liaise with them and pass the information to be not necessarily a vexatious complainant under back up again? the policy but someone who has asked the same Anne-Marie Ledson: We would liaise at the time. If question seven times and you have exhausted all the people came to us in those circumstances, what we possibilities. I do not think anyone wants to waste any would suggest is that they put another complaint in NHS resources, be it ours or the operational staff and highlight the fact that a change was promised and looking at something for the eighth time. none has been forthcoming. It all depends on how the I agree with your point but, also, sometimes, with a action plans are scrutinised within an organisation. lot of our complainants who are vexatious, when you Some organisations are very good. They do implement look right back to the very beginning, they have also the action plans and changes are made. On the other been right at one point or another and you can hand, there are other organisations where service understand, to an extent, why they are continuing to improvements are proposed and nothing happens. feel the way they do. I like to think—and sometimes Chair: That is a neat encapsulation of the problem, it sounds a bit optimistic—that there is still an I think. opportunity to win them over. It has taken a long, long time with some of our individual inquiries, but Q230 Andrew George: I want to come back to what sometimes you do still get success with them, where I have detected as two presuppositions in all of your you are able to create closure for them or move them responses to the questions which you have received to the point where they do not feel the need to ask so far. The first is that complainants are, by nature, any more and that helps everyone. But it is a judgment stoical church mice who do not like to say boo to a call based on each individual trust and your knowledge. goose and are very reluctant to complain, and that there is no such thing as gold-digging, vexatious Again, I would come back to my worry for the GP fault-finders who plague your system. You have all consortia, which is that they are potentially going to lose that knowledge of who are the vexatious been terribly nice about complainants, assuming that individuals and people could spend an awful lot of everything they tell you is absolutely true and that the time dealing with it. People will see it as an purpose of their complaint is to improve the service. opportunity to go back to the beginning, like they did How do you deal with those complainants who when stage 2 of the process was removed. They perhaps do not fall into that category, for want of a thought, “Brilliant, we can do this all over again now. better expression? Let us go back to scratch.” We certainly found that Helen Marshall: You are still honest. If your people did try. investigation findings do not agree, then you have to be fair and honest in the information that you have Q233 Andrew George: The second presupposition, found. to an extent, was partly drawn out by Valerie’s latter question earlier, that a lot of the cause for the Q231 Andrew George: Are you not creating a very complaint is either professional or clinical rather than welcome vehicle for them to pursue endlessly their resource management, managerial or procedural. complaints and take up a lot of your time and also, I Certainly, I know of cases where, in fact, members of think, to traumatise staff in the process possibly? I staff have encouraged patients to complain because don’t know. they are struggling on the front line with inadequate Helen Marshall: It works alongside other processes. resources and they believe that encouraging the Most places have a vexatious complaints policy. So patient to complain will help to redress a problem, there is a point at which, with senior agreement, you about which they do not feel they are being listened can say, “We cannot do any more in relation to the to on the front line, particularly where whistleblowing issues that you have raised.” It also works alongside does not seem to be either encouraged or available to the zero tolerance for violence and aggression towards them. To what extent, with the complaints which you staff. That has to be taken into consideration. are dealing with, are you able to report back to the system so that it is not merely a complaint against the Q232 Andrew George: But that is taking it to a real professionalism of staff but one which highlights a extreme, if they are coming in wielding a club. I am resource management issue, a staffing level issue, and saying that we know, as Members of Parliament, there so on? are very occasionally those complainants who you Lee Bennett: We treat all complaints on their merits. know you will never satisfy but you have created lots Personally, I find it very disappointing if a member of of layers through which they can pursue their staff has chosen to manipulate a patient or relative, to complaint. Where it is clear in the process that there an extent, to do that. From my experience, those cases is no foundation for the complaint, I wondered how are usually quite difficult to resolve because you manage to ensure that your resources are not sometimes the complainant, in the same way that they taken up. are afraid to complain, in some situations can be cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall afraid not to complain if someone has put them in that going wrong or had gone wrong? If that is the case, position, which, for us, makes it very difficult to why do people hold back to apologise for the resolve their complaint. I am pleased to say we do not indefensible? have that very often, and I do not have to deal with it Anne-Marie Ledson: The simple answer is absolutely too often, but when we do it feels very distasteful. yes. There are a number of clients who say, “If only someone had said right at the beginning ‘I am really Q234 Andrew George: To put it another way, if a sorry that this has happened. It should not have complaint comes forward and it is clear it is an issue happened and we will do our best to make sure it of resources rather than the professional standards of does not happen it again’, then that would have been the people struggling to manage with those resources, the end.” is that something which you are able to tease out when you are conveying the matter on? Q239 Chair: Why don’t they? Lee Bennett: I think so. A good example would be Anne-Marie Ledson: That is difficult for me to winter pressures through A and E, for example, where answer because I am outside the system. A lot of it our A and E department will struggle to deal with depends on the culture that we talked of before and the number of people coming through the door. Our the defensive attitude that sometimes comes along. If response has to reflect any ongoing work that we have someone criticises you as an individual, your with our PCT about messages that are conveyed to the immediate reaction is to be defensive and then you public about which service to use and when. It is the may have to think about it. If the culture around you time when you should be looking at is defensive, then you are not encouraged to step back cross-organisational responses and not just responding and think, “No, actually, there was something that from the point of view of your trust, to explain the could have been done better there.” It is the culture full picture to the complainant so that they understand. that is important. What you want, if that is the complaint, is for them to make a more informed decision themselves next time Q240 Chair: if A and E was not where they should be, and that May I push that? Is it purely culture or could well be the case. It could relate to ambulance is there an institutional concern about payments that resources, for example, and again we would look to would be required or consequences that would flow? do a cross-organisational response there as well, Anne-Marie Ledson: Yes. There is that element of, where you are looking at the relationship between the “We will get sued and I will get struck off”, and this two organisations and how the patient has landed in sort of thing. That fear must be there. However, it the middle of that. may seem idealistic, especially to your colleague Mr Anne-Marie Ledson: May I pick up on that point? George over here, but the majority of people who We do get a number of clients who come to us and come to us say that the most important thing is they say, “I talked to the staff on the ward and they said do not want it to happen to somebody else. They are ‘Put a complaint in. We are always complaining about not interested in financial recompense. They just want the staffing issue’.” So it does happen. However, I things explained, for it to be acknowledged that things have to say that it is not often acknowledged in went wrong and for it not to happen again. responses received by our clients that it is a resource issue that has caused the problem. People will talk Q241 Rosie Cooper: Is part of the difficulty that it is about changing and improving the system, but I not clinicians and whoever that get to apologise nor honestly cannot remember the last time I saw a write those letters? The reality is that the managers response letter that mentioned a lack of resources as may do the investigation but the chief executive signs an issue. the letter. So nobody below that level will want to do or say anything until it has gone right up to the top of Q235 Andrew George: A response from whom? the system. Would that be fair? Anne-Marie Ledson: The response from the trust or Lee Bennett: Again, not from my experience. When the organisation being complained about. the complaint is received and we have sent it out for investigation, sometimes the consultant will ring and Q236 Andrew George: That they would ever say, “We really did something wrong here. Do you acknowledge that it was a resource issue. mind if I ring them or can I bring them back for an Anne-Marie Ledson: I cannot recall one personally. I appointment?” We would always say, “Gosh, yes, am not saying that it does not happen, but I cannot please do.” recall one personally. Q242 Rosie Cooper: But just you saying that is an Q237 Andrew George: That is interesting. But, encapsulation of what— normally, it is the clinical manager or a manager who Lee Bennett: It is because it is a process and it is one is writing those responses, presumably, and not the they do not live every day, if you like. If you are a staff on the front line. consultant, you may get one or two complaints a year; Anne-Marie Ledson: Yes, having taken evidence you may get more. from the staff on the front line. Q243 Rosie Cooper: If you know you have done Q238 Chair: Do you think you could get to closure something wrong, the automatic assumption, just out more quickly if there was greater readiness on the part of your own mouth there, is not to say, “Oops”. Well, of the provider to apologise where something was you wouldn’t say “Oops”, but it is not to say, “I am cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Lee Bennett, Anne-Marie Ledson and Helen Marshall sorry. It is wrong”, or whatever, and to explain there Helen Marshall: If we are going to give genuine and then. It is immediately to be defensive. apologies, we need to understand what has gone Lee Bennett: I do not think it is a fear of being sorry. wrong. That can sometimes delay the apology, It is a fear of the process that has been put around it. because it is all right saying you are sorry but what It is not that they do not want to be sorry. It is that are you actually sorry for? We are sorry something they are aware that the process is ongoing and, to be has gone wrong but we need to know why it has fair, as complaints managers, we are often gone wrong. encouraging them not to do something because we Chair: If I may say so, we have already overrun by want to make sure the process is followed. nearly quarter of an hour so we should say thank you Sometimes, we can have our own double standard very much indeed, unless there is something you feel occasionally. we have missed. Rosie thinks there is something we have missed. Q244 Rosie Cooper: That double standard is at the core of this problem, is it not? If on the one hand you Q247 Rosie Cooper: I desperately wanted to ask you are saying it would solve the problem, but on the other this. When I was chair of a hospital, the Audit hand you are part of stopping the person saying it, Commission insisted, when they were doing their then you need to resolve that tension, do you not? “scores on the doors” for the hospitals, that each ward had complaints leaflets so people knew where to Q245 Chair: Why would you, as a complaints complain to. I have had occasion to be in a number of manager, want to stop somebody saying sorry? hospitals recently and they are few and far between Lee Bennett: I would not. these days. Does every ward in your hospital have them? Is there a requirement still by the Care Quality Q246 Chair: That is what I heard you to say. Commission, for example, that each ward must have Lee Bennett: What I am saying is that, when you are those complaints, pointers to the Ombudsman, ICAS in the complaints process, anyone who is a part of the or whatever? investigation often feels nervous of the process and so Lee Bennett: We have them. I think we answered this will look to their PALS or complaints manager for earlier. We have posters and leaflets on every ward, in advice about what to do. That could be how they every clinic and every public waiting area. investigate and who they should speak to, but, similarly, the reality is sometimes they do feel Q248 Rosie Cooper: But are you required to? That concerned about the fact that there is a process and is the question. Has that gone out of the door now? whether they can do anything outside of it. Even being You might do it but somebody else doesn’t. sorry, they sometimes might feel, is something that is Lee Bennett: We have it written into our own outside of the process. complaints policy. Helen Marshall: It is sometimes an issue of timing, Anne-Marie Ledson: If I may answer, it is in the 2009 getting the right people in the right place to say sorry. regulations that information about how and where to If it is the clinician who has identified the problem, complain must be available to patients. It is in the nine times out of 10 they would tell the patient before regulations, but I cannot remember which section. they would tell us. That would be documented in the Lee Bennett: I don’t think it specifies where, though. case notes. That would happen. Where you might Helen Marshall: It does not specify to the level that have more of a time delay is when a clinician has you said, though. identified something that they think someone else Anne-Marie Ledson: May I say that, certainly from perhaps has not done right and then you get into the an ICAS point of view, our posters and leaflets are not process of making sure that that is identified, often—in fact very rarely—put up in hospitals, GP investigated and then getting the right person there. surgeries, dentists, etcetera, even though we have That can stop a “sorry” being said sooner rather than posters and leaflets available? later. Rosie Cooper: I have got to be honest. I go on a hunt Lee Bennett: It is when they do not know about it. for them. I am telling you now that I have been in As Helen has said, when the consultant is aware of probably four hospitals recently. You may find them the problem before the complaint has come in, they in the main area, but you would be hard pushed to often have already made that apology in the clinic find them anywhere else in the hospital. That is really appointment or on the ward. The delay is when they important because people need them where they are. are learning of an issue through the complaints Chair: I am going to make a second attempt to move process that they did not know anything about, and on to the second panel. Thank you very much indeed that would usually mean that it has not involved them for your time. There were some thought-provoking specifically in the process. contributions. Thank you very much. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03
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Examination of Witnesses
Witnesses: Dr Mark Newbold, Chief Executive, Heart of England NHS Foundation Trust, and Helen Thomson, Executive Director for Nursing and Deputy Chief Executive, Calderdale and Huddersfield NHS Foundation Trust, gave evidence.
Q249 Chair: I understand that there is going to be a Dr Newbold: Yes. It is up to us as leaders to keep vote in about 10 minutes. I apologise as we are going re-emphasising that that is not the case. So every week to have to suspend this sitting at that point to allow at staff induction I always finish by saying to new Members of the Committee to go and vote on the staff that, if they see something that does not look and Floor of the House. With that advance warning of the feel right from their perspective, then they must raise vagaries of parliamentary procedure, could I ask our it and they will not be penalised for doing so because two second witnesses, please, to introduce yourselves it is not by design; it is by accident. and tell us where you come from? Dr Newbold: I am Mark Newbold. I am Chief Q252 Chair: And that they might be penalised for Executive of Heart of England Foundation Trust, not doing so. which is an acute trust in Birmingham and the Dr Newbold: Yes. I think they have a duty to do that. surrounding areas. Helen Thomson: I am Helen Thomson. I am Director Q253 Chair: That is the further stage in the process, of Nursing and Deputy Chief Executive at Calderdale is it not? and Huddersfield Foundation Trust in West Yorkshire. Dr Newbold: That is written into the duties of a doctor, for certain. Q250 Chair: You both heard the evidence that was Helen Thomson: It is the same for nursing. Picking given in the previous session. I would like to begin up on the medication error, if we discourage nurses by following on pretty much from where we left off from reporting medication errors, that is more in the discussion with the previous group of witnesses. dangerous for the patient, for example, so you This is around the importance of culture within the encourage that openness. I would never discipline a organisation to ensure that complaints are dealt with nurse for being open about a medication error because as an opportunity to explore what goes on in the you will just encourage them to go underground about organisation and improve performance, and link that it. So it is really important to keep that openness to the concept of the duty of candour, which is quite going. In terms of the honesty, it is really important often talked about in this context, whether you are a to reinforce all the way through the organisation the clinician or a non-clinical member of staff. Do you importance of saying “We got it wrong” when we do feel in the organisations in which you work that there get it wrong—and we do sometimes. If staff see that is a culture of openness and that that is reinforced by from the top of the organisation, they are more likely the sense that there ought to be a duty of candour not to continue to do that themselves. to have the truth extracted from the organisation by a process but that the moment the organisation Q254 Chair: I will put the same question to you as I establishes what the truth is it should feel itself under put to the previous group of witnesses. Repeatedly, in an obligation to volunteer it? the Health Service, you hear that insiders know where Dr Newbold: The culture is changing. The changes it works and where it does not, where there is an open in 2009 put more of an onus, quite rightly, on local culture and where there is a closed and defensive resolution. My experience of two acute trust boards is culture, and the last people to find out are the patients that the boards were very focused on those changes. or often the regulators or the commissioners. This is The challenge is to get that embedded across what knowledge that is known on the street, but there is not can be a large and complex organisation. Some of the a procedure for surfacing that knowledge in order to discussions you have had in the previous hour point use it. Is that an issue that you recognise? to the fact that some individual members of staff can Helen Thomson: I recognise it. It is not in my still feel threatened by or defensive about complaints. experience, particularly, but there are other ways of It is our job as board members to start shifting that finding out what is going on. Once you have a culture, and I think it is changing. Last week, in our complaint, it has already gone wrong. It is important trust, we had a medication error and I have already that you have mechanisms as a board to ensure that written to the patient apologising for the error, you have some understanding of what is going on, on offering support ahead of the serious incident the ground. You are not just relying on complaints and investigation being carried out. It is changing. If I was you are not just relying on a whistleblower. You go to be honest, there is some way to go in terms of out and see for yourselves and you have got embedding that as a cultural change across large information that you are collecting from ward or organisations, in my experience. outpatient that goes to board. You can start to see the information in front of you, and you go out and you Q251 Chair: Do you feel there is a requirement for check it out with staff. there to be almost a rebalancing of risk? A member of staff is liable to be criticised if, having found Q255 Chair: Do you arrange for independent something out, they do not volunteer it and that ought assessment of the culture of the organisation on a to be just as much a risk of criticism as of having periodic basis—somebody coming from outside to test made the mistake in the first place. your own self-perceptions? cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
Ev 52 Health Committee: Evidence
26 April 2011 Dr Mark Newbold and Helen Thomson
Helen Thomson: Yes, we have done that. You can do That might be a driver for them not to publish the a cultural survey and get information back that says data. you have a nice open culture, but what you can find Helen Thomson: I do not think publishing the data or is that you have wards and departments, for example, not is an issue for the reputation. The public will that might have their own culture. It is really know. If you have a bad reputation for the way you important that you get underneath the skin of the handle complaints in your organisation, that is known, organisation and that boards do that. out in your community. Dr Newbold: Boards need to take soundings, so within an organisation one recognises where Q258 Grahame Morris: It was not known in Mid complaints are managed well and where they are Staffordshire for over a year, was it? It was known in managed less well. We survey all wards and clinical a particular circle, but it was not known, areas every month. Every month, 15 patients answer acknowledged and something done about it by the a dozen questions about their care. That comes to the commissioners and the PCTs and so on. board on a monthly basis so that we can chart every Helen Thomson: When I say “it is known”, it is single clinical error across all three hospitals and we known not so much in the health community but it is can see who is improving and who is not. Then we known in the community. The public who use the can intervene. Those surveys, I should say, are not services know. So I do not think there is anything carried out by ward staff. They are carried out by wrong in putting your complaints information on your people who do not work in the wards. It is either website. Whether you put it on or not, the reputation volunteers or managers or people who are not known is still there in terms of the public who use the in that area. They pick the patients at random. There services. That is important. is a number of ways whereby boards can get In terms of why FTs do not send their returns in, it is intelligence back about how the different areas in because the information is not very useful. The hospitals are performing. information that goes to the centre needs to be useful. Chair: Thank you. On cue, we have to go, and It needs to be current and comparable. At the moment, Grahame will take over questioning when we get that is not the case. In terms of sending it back into back. the service for the service to use, you need to be able Sitting suspended for a Division in the House. to compare organisations against organisations. On resuming— Chair: Mr Morris. Q259 Grahame Morris: You have indicated earlier in response to my first question that you think how a Q256 Grahame Morris: Thank you. Would you complaint is handled is a quality issue. With the new consider that how an NHS organisation handles a arrangements that are proposed under the Bill, if complaint is a quality issue? The reason I ask that is contracts are to be awarded by the GP or the NHS the way that foundation trusts in particular handle commissioning authorities, whatever form and shape their complaints, and also the fact that they do not they take, then surely this information is a relevant necessarily publish complaints data, is extremely fact because the patient experience affects quality. In variable. What are your thoughts and do you think that case, do you think that reporting should be mandatory reporting should be a requirement of mandatory? complaints data? Helen Thomson: Yes, providing the reporting that Helen Thomson: Certainly, in terms of, “Is it a feature you send back is useful and comparable. of quality?” yes, it is, in how you respond to that complaint. In terms of publishing the data, we put our Q260 Grahame Morris: It could be useful to the information that goes from our boards on to our commissioner, could it not? websites. As a foundation trust, we do send our Helen Thomson: Exactly. Korner returns in, but I have to say that, with a mandatory requirement, if it is to be made mandatory, Q261 Grahame Morris: If not to the provider? it has to be useful. The service would need to see the Helen Thomson: I think that is right. It could be benefit of submitting that information. Certainly, from useful to the provider if it is comparable. I would be our experience, the Korner returns at the moment do able to compare my complaints responses to the Heart not provide any useful information back to the service, of England’s responses if the way we collected the although we are still submitting it. information and submitted it was useful.
Q257 Grahame Morris: It is quite interesting. You Q262 Chair: The answer is not a debate of principle say that your particular trust does, but the evidence at all. It is a debate that the information currently that the Committee has received is that one in seven collected by The Information Centre is not collected foundation trusts declined to return complaints data to in a form, in your view, which maximises its utility. The NHS Information Centre. I am intrigued by the Helen Thomson: Yes, absolutely. reasons for that. Why do they not find value in it? I would also be interested in your thoughts on the Q263 Rosie Cooper: Forgive me. I could probably implications of the new Health and Social Care Bill, be very exasperated here. I did not notice any Jolly particularly in relation to the reputation that a hospital Rogers getting flown above foundation hospitals. enjoys and whether publishing data of this kind, or They are all part of the National Health Service. So making it centrally available or available on websites, what is there to hide? I was the chair of a hospital that could be detrimental to the reputation of an NHS trust. became a foundation hospital, the Liverpool Women’s cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Dr Mark Newbold and Helen Thomson
Hospital, with a magnificent reputation. I do not think which we do, and we encourage the board, when it it is quite as good as it was, but I was absolutely does its leadership walk-rounds, to follow up in areas shocked this week to read in the Liverpool Echo, as a where we think action plans are closed so that we can result of a Freedom of Information request, that an do another check almost into what was happening in ambulance arrived at A and E and it took six hours those areas. and 23 minutes before it turned round. That is quality information and quality experience, and there is Q266 Grahame Morris: Who carries ultimate absolutely no way on God’s earth that an NHS responsibility at board level? Is it the chief executive? hospital receiving money from the taxpayer has any Helen Thomson: The chief executive, yes. right to hide that information. If you do not think that the information that is being collected centrally is Q267 Chair: Is the same kind of thing reflected in correct, then the NHS foundation hospitals ought to your trust as well? be talking to the people and getting the information Dr Newbold: Yes. We have a monthly report on the refined in some way or another. But the reality is that patient experience, so we look at our own survey data other NHS hospitals provide it, you are getting the that I mentioned earlier. We look at what is appearing money from the same source and you should provide on NHS Choices and the Patient Opinion website, the it. I am absolutely appalled that, just because you numbers and gist of the complaints on a monthly become a foundation hospital, you think you can hide basis. We do not routinely have narrative complaints the truth from the people who are providing the at the board unless there is a particular issue. We did money to run your hospital. recently. We asked the clinical director of care of the Helen Thomson: I would not disagree with you. elderly to come and talk through a particular complaint. So the board sees this on a monthly basis. Q264 Chair: I think Mrs Thomson said that they send it in. Q268 Grahame Morris: Routinely, who would Helen Thomson: We do. I would absolutely present that monthly report? Would that be somebody encourage every hospital, whether they are an FT or from HR, the PALS manager or a more senior person not, to be open about their information. I do not have in the organisation? a problem with it. Dr Newbold: It is one of our directors. At the moment, Rosie Cooper: There should be no hiding place. complaints sits within our safety and governance Those hospitals are owned by the Great British public. directorate and she presents it. I am in the process of Patient choice is based on what I think is going on in changing that because the process is still too based on a hospital. I should not be fooled by the good PR retrospective investigation. It would sit better in our stories and the facts should not be hidden from me. patient-facing directorate, our corporate affairs That is what one in seven organisations think is going directorate. We are in the process of re-orientating on. It is outrageous and the FT network ought to deal the system. with it. That information belongs to the public. The nature of the complaints is changing. I get several e-mails a month now from patients, or from their Q265 Grahame Morris: Following on from that and Members of Parliament, about people who are still what we have heard from your colleagues in the first in the hospital. We need a more fleet-of-foot, more session, from PALS, ICAS and an NHS foundation proactive system that gets straight in touch with trust, I did make a note from the responses—I think it people and addresses the problems here and now. My was from Mrs Ledson, although I might be experience would be that a large proportion of people mistaken—in respect of how frustrating it is for who complain want something to change. They do not patients when they make a complaint, and it may want a lengthy retrospective look at what happened come through PALS or through the Health and why. Ombudsman. There is an action plan proposed and then a year later they find that nothing has changed; the NHS foundation trust has not implemented the Q269 Rosie Cooper: Are your board meetings open changes that it promised to do. As someone who has and do you publish your board papers? also served on an NHS foundation trust board as a Dr Newbold: Our board meetings are not open at the non-executive, I thought in our particular case we moment, but we do publish our board papers. gave it a high priority and I took a personal interest in ensuring that the complaints were properly addressed. Q270 Rosie Cooper: All of them. Perhaps you could give us some indication as to how, Dr Newbold: Yes, unless there is anything that is in your particular trusts, complaints are addressed at commercially or personally sensitive. board level. Is it simply a written report or is there some kind of narrative that is given with the Q271 Rosie Cooper: If you publish all the board complaint, with an action plan and a timetable to papers, why do you not have open board meetings? implement? Dr Newbold: That is a discussion that we will be Helen Thomson: We take our complaints report having with our new chair, who is sitting behind me, quarterly to the board with data and narrative on that. I think. The debate on public board meetings does not We have a Quality Assurance Board which is a sub- particularly relate to complaints. It relates to the committee of the Board of Directors that goes through quality of the challenge between executive and our action plans in detail. It has delegated authority non-executive directors. I am fairly open to the notion from the board to go through the action plans in detail, of public board meetings. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Dr Mark Newbold and Helen Thomson
Q272 Rosie Cooper: I disagree. Hospitals had open Dr Newbold: Most of us have probably moved past board meetings for a long time before they became the point where we think we should be secretive about foundation trusts and suddenly the doors closed. There almost everything. Hospitals are complex places, full was enough challenge, especially where I was of thousands of people, and trying to keep things chairing a meeting. Can I ask about your hospital? secret is a hiding to nothing. Of course, they are full Helen Thomson: Our meetings are all in public. We of people with different views. You will always find have a private session if, again, there is something that individual staff members in individual areas who are is commercially sensitive or person specific. less open than others, and that is for us to tackle. But, certainly at the senior level, we fully accept that we Q273 Rosie Cooper: But they are all open. are in an era where pretty well everything can be and Helen Thomson: They are all open, and the papers should be in the public domain. That is what we are are published, too. working towards. In fact, we believe it enhances our reputation to be open and honest about the performance of the organisation. That is not always Q274 Rosie Cooper: Do you know or would you easy. The public and the media are not always used to have any idea of what proportion of FT board seeing data and it can lead to difficult media handling meetings, for example, are closed? at times. The mortality data was a good example. The Dr Newbold: I think the majority. solution is not to pull back. It is to keep putting more Rosie Cooper: Yes, so do I. That is something which data in a more easily understandable format in the somebody perhaps needs to address at some point. public domain. Thank you. Chair: Let us stick with complaints for today, Q277 Grahame Morris: I agree with your anyway, shall we? sentiments, but you did say that your trust does not meet in public, and the figures still show that one in Q275 Grahame Morris: On that theme, and moving seven NHS foundation trusts do not provide data to on slightly, which we touched on in the first session, the NHS Information Centre. the Committee has heard evidence of the victim Dr Newbold: To be clear, we do provide that data. culture amongst NHS staff—the feeling that somehow they are the victims in terms of pursuing a complaint Q278 Grahame Morris: You provide the data but and that the boards of NHS organisations put your board meetings are not in public. protection of the hospital and the organisation before Dr Newbold: We put the papers out in public. individual complaints. This is a perception that has been put forward in evidence. What would your Q279 Mr Sharma: Sticking with that blame culture, response be to that from each of your respective what steps have you taken to introduce a fair blame trusts? Is fear of litigation perhaps one of the reasons culture in your organisations? why the culture is so defensive rather than being Dr Newbold: It is something that has to be led from open? the top, so I am very clear at the monthly team brief Helen Thomson: My experience is that in our how I want us to behave both towards each other and organisation I do not think we are defensive. We are towards members of the public. We use examples of very open if something has gone wrong. We do try to good and poor care at team brief to discuss it openly be open with staff, at the same time recognising that in open forum with the staff. You have to keep sometimes it is said that things go wrong when they reiterating how it is we want to do business and you have not. It is not a feature of their fault so much as have to demonstrate that we mean it. I will get they have got it wrong and being open with them. In involved with complaints sometimes, visit the area terms of litigation, we do not have a fear that being and discuss it with staff. It is not something you can open around that will necessarily result in more introduce overnight because people, for the reasons litigation. Certainly, in terms of reputation, the point I you have heard, sometimes have a tendency to be raised earlier about being defensive, or the board defensive. But you have to keep reiterating that we being defensive, does not sort the problem if you have need to be open, to prioritise the basics of good care, a problem with your reputation. and when we get it wrong we need to apologise and look into it in an open way. Q276 Grahame Morris: Might that change under Helen Thomson: I am very similar in that respect. the new arrangements set out in the Bill, where, rather than having a preferred provider, which would be the Q280 Chair: Do you recognise and do you like the local NHS trust, Any Willing Provider would prevail? concept of the duty of candour, formulated as an The Bill is paused to consider alterations, including obligation to volunteer information once you have suggestions from this Committee, but is it conceivable established that it is the truth, even if it is not that that could become an issue in terms of being flattering? defensive because of the risk to the reputation of the Dr Newbold: I would find it very, very uncomfortable hospital, which may influence referral patterns? to work in any other way. Helen Thomson: I do not think so. Patients have that Helen Thomson: I would support that. choice now in terms of the choice to go somewhere else. In terms of the Bill, patients may have more Q281 Chair: What is striking to me about the choice than they currently have, but they have choice evidence you are giving this evening is that, if every now to go elsewhere. organisation in the Health Service worked as well as cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Dr Mark Newbold and Helen Thomson you describe, it is not entirely clear to me why we are hospitals obliged to publish a wide range of measures under pressure—and we were under pressure—to look and views of their service and then be accountable to at the way complaints are handled in the Health the local population as to whether they have Service. If there were a recognised duty of candour prioritised the right areas or not. If they are not doing universally round the system, there would no doubt be well in some areas, why not, and so on and so forth? problems, but they would be rather different from the Publishing a wide range of insights into the services ones that have been described to us. we provide is, ultimately, going to be the best way Helen Thomson: There is huge variation, though. by which people can gain confidence in their local What we have heard as well is huge variation in the providers. That is what most people want. They want way NHS trusts handle complaints. Certainly, in terms to be confident in the services that they are receiving of our own experience, when we handle a complaint locally. that crosses organisations, we struggle sometimes with Helen Thomson: I would agree with that, and I also other organisations who do not have the same think it is very useful, in terms of the service sharing approach that we do. We know, within our own that information. So I could look and say, “Why does locality, that sometimes it is very difficult to get an your trust do it better than I do on that and what can open response from another organisation. There is we learn from that?”, rather than not having huge variation. information that is comparable.
Q282 Chair: We were talking about the difficulty of Q285 Chair: Looking for an opportunity to learn this earlier, but is there a way of creating a league implies a willingness to learn. table, even if anybody wanted to, that accurately Helen Thomson: It does, but if the information assessed the effectiveness with which the complaints published to commissioners also says, “The services are dealt? Recognising the impossibility, and probably you are commissioning from this organisation are not undesirability, of trying to create a league table in the as good and the complaints response is not as good as crudest sense, if there is a broad range of experience, that over there, so what is happening about that?”, that it must follow that there are people who do it well and would be quite an incentive to most providers. people who do it less well and we need a more effective mechanism for ratcheting up those who do it Q286 Chair: It is an interesting thought—then I will less well. Do you agree with that? shut up—but personally I agree with you that part of Dr Newbold: The way that trusts deal with complaints the responsibility of effective commissioning is reflects their view of the patient within the work that looking at the complaints process in order to ensure they do, so I think it is linked. A trust that provides that it does match good practice, but I am not sure good patient-focused care will almost certainly deal how many commissioners would do that. Does your with complaints well. commissioner ever ask you about your complaints process rather than the instances of individual cases— Q283 Chair: I am not sure that makes it any better, the process rather than the cases? because presumably the converse follows as well, that Helen Thomson: No. if you are not doing complaints well you are probably Dr Newbold: No. They would want to know we had not doing good patient care either. a process and policies in place. Dr Newbold: That may well follow. We are preparing for a future where we are judged primarily on the Q287 Chair: They want you to tick a box. public view of the treatment and care patients receive Dr Newbold: Yes. and the clinical outcomes. That would be the ideal way to judge hospitals; we recognise that. We see the Q288 Andrew George: Can we move on from your targets as moving from ones around speed of access own complaints process to the Ombudsman services, to ones around public perception and clinical and I know, Dr Newbold, that you have not been at outcomes, and we welcome that. It is a more complex the Heart of England NHS Foundation Trust for very way to judge how hospitals are performing, but it is a long? Could the two of you explain or, if you like, more valid way. It is for all of us to work together to paint a pattern of the numbers of complaints that you understand what are the best measures of that and how are aware of going to the Ombudsman about your trust do we put those into the public domain in a way that over the last few years and those that have gone to the is useful to people. second stage? Helen Thomson: Certainly, in my trust, very few Q284 Chair: Do you have some simple suggestions complaints have gone through to the Ombudsman. for the Committee as to how we could move more Less than 1% of complaints go through to the quickly and effectively along the path you highlight? Ombudsman. Our relationship with the Ombudsman The evidence appears to be that you do it well and has been such that we feel, usually, when they have other people do it less well. It therefore follows that gone through, it is because we have completely we should be interested in how to raise the standards exhausted the process locally, whereas a few years ago in the ones that do it less well, and the Committee is a number would go through to the Ombudsman and open to suggestions about how that objective might the Ombudsman would send them back because the be achieved. process had not been fully worked through. Although Dr Newbold: As a personal view, targets have we will get some complainants who will do that and achieved quite a lot. They can lead to a skewing of go through before we have exhausted the process, priorities. What I would like to see is all NHS generally we find now they only go to the cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
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26 April 2011 Dr Mark Newbold and Helen Thomson
Ombudsman when we have exhausted what we can Q293 Andrew George: And you have acted where do, and it is less than 1% of our complaints. they have made recommendations on every occasion. Dr Newbold: Yes. Q289 Andrew George: What is 1% numerically? Helen Thomson: We are dealing at the moment with Q294 Andrew George: When you say that you do between 500 and 600 complaints a year in the last not get enough clarity with regard to the financial side few years. of it, do you mean to say there appears to be Dr Newbold: We received about 1,000 complaints last inconsistency in what they recommend in terms of year. I understand 82 were referred to the financial compensation? Ombudsman, but a very, very small number of those Dr Newbold: When we get back a recommendation were accepted by the Ombudsman. There is still a from the Ombudsman to make financial recompense, misunderstanding amongst the public in what the it would be helpful in the future if we understood the Ombudsman can do. rationale for that so that we could offer that earlier the next time the occasion arose and not have to let it go Q290 Andrew George: Does that mean to say that to the Ombudsman. That is one of the pieces of they have completed the course of complaints which feedback I have had from my staff in that area. they can pursue within your own organisation and Andrew George: That is helpful. have then felt that they need to go on to the Ombudsman, or have they been encouraged to go to Q295 Valerie Vaz: Picking up on that, she makes a the Ombudsman perhaps prematurely? recommendation, whatever it is going to be, without Dr Newbold: Some people will go straight to the giving reasons for her decision. Is that what you are Ombudsman, or very early on, because they feel they saying? are not going to get satisfaction from us. It is a failure Dr Newbold: No. She will give reasons, but they are of our system if people go to the Ombudsman. As you related to the individual case so they are difficult to know, most should be resolved locally. Some people extrapolate to a future case. That was the point being do copy the Ombudsman in very early, along with made. their Member of Parliament and others. Ideally, they should go, of course, at the end of the process. Q296 Valerie Vaz: I suppose it is quite difficult for her to go beyond that remit, is it not? Q291 Andrew George: I was asking about the Dr Newbold: Yes. pattern of complaints. Over the last two or three years, is the pattern of complaints being referred to the Q297 Valerie Vaz: Maybe that is something we need Ombudsman increasing or remaining the same? to look at. I want to pick up something that has been Helen Thomson: Ours is broadly the same. in the media, and it may not be true of your two trusts. In the media there have been lots of instances of the Dr Newbold: It is difficult to compare because the lack of care of elderly people that seems to be coming system changed in 2009. We do not think it has across. Why do you think that is? Is it because they changed dramatically. are not the articulate people who can have someone put their case forward? Do you know how elderly Q292 Andrew George: In terms of feedback from people complain in your organisation? the Ombudsman, your indication is that some perhaps Dr Newbold: The whole issue of care of the elderly bypass your system and go directly, but do you get is a huge question, which is a big, separate issue. Is complaints from the Ombudsman saying, “A lot of there any justification for providing poor care to the these are arriving prematurely. There is no need for elderly? No, of course not, and, if there is any this. Can you act as a gatekeeper before they start evidence of that, it should be investigated in the usual troubling us?” Do you have any of that kind of way. There is a broader issue about how the NHS feedbacks or any other feedback that you are getting manages the frail elderly, which I feel quite strongly from the Ombudsman? about and I will not talk about at great length. We are Helen Thomson: Certainly not that type of feedback. too hospital-centred. We almost certainly admit more We do get feedback from the Ombudsman in terms people than we would if we had a system that was of, “It is appropriate that this came to us,” and ways more tailored towards keeping people well and in which to help to resolve the complaint. So, yes, we keeping them independent. We do know—there is are getting very useful feedback from the good evidence—that the longer they spend in hospital Ombudsman there. the more they suffer a loss of independence, at the Dr Newbold: Yes. From the small number that are very least, and sometimes worse complications. dealt with and go through the Ombudsman’s process, The situation feels unsatisfactory and the acute care we get useful feedback. One area where there could environment is not always perfectly tailored to what be more clarity is on financial compensation. We have is not always acute care for some of the frail elderly asked the Ombudsman’s office what is the framework who are in hospital. That is not in any way to excuse they use to determine compensation and we received poor care, but it is a comment on the broader system, the response that it was down to individual cases. We which I think is one the NHS really does need to are a bit unsure about that process and we would like address because there is fairly strong evidence that we to see some more uniformity. Generally speaking, in are, as I say, too heavily biased towards in-patient individual cases, yes, we get useful pointers which we stays, which are not good in terms of re-abling the put back into our complaints process. frail elderly back into a state of independent living. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
Health Committee: Evidence Ev 57
26 April 2011 Dr Mark Newbold and Helen Thomson
Helen Thomson: One of the things that we have done you have discussed, so we follow that. We have an locally is to keep our matrons very visible in those incident reporting system. We would have areas, particularly around visiting time. Interestingly, investigated anything that is liable to go through that what the matrons fed back was that they were not route internally first and endeavoured to understand being used at visiting time because the visitors come what went on, learned the lessons and so on and so to visit their relative and do not want to talk to the forth. They come from a variety of routes. Some will staff. What they have done is to organise other times, come through complaints and many will come through and it is advertised when they are available. That has our incident reporting system, which we have been used, particularly where relatives have concerns established in the trust, sometimes from the coroner. that “My mother is not happy about the food but she There are a number of routes, but we have a pretty will not tell you”, that kind of thing, so trying to pick rigorous system, which is fairly well prescribed, about it up much more at the bedside with those patients. how we investigate, report and learn from those incidents. A small proportion of them will go on to Q298 Valerie Vaz: What about the ones who do not full litigation, but the vast majority will be settled have relatives, because there are quite a few elderly much earlier. We have a policy of being very proactive people who probably would not have? in terms of providing information and so on so that Helen Thomson: Very few, in our experience, do not they can be settled quickly, essentially. have visitors of some description. Usually, if somebody is available to talk to, they will say, “We Q302 Valerie Vaz: Those are where the costs are. do not quite know what is happening here. We are not What about the ones that go on right to the end? You very sure about this. We are not happy about the are the client of the Litigation Authority. Are you able food,” or whatever. So we can start to pick that up to say, “Settle this now”, or do you get to the stage there and then, and I think the point was made earlier where they are telling you, “We are not going to settle about taking the process to the patient and their because otherwise it is an admission of liability and relatives rather than expecting them to come to us all you do not do that until the door of the court”? the time. Dr Newbold: We work with them, so we take Valerie Vaz: May I move on to litigation, unless you guidance from them. We provide them with all the want to ask something on that? information openly and early and then they guide us. It is done in conjunction with them. What we do not Q299 Grahame Morris: Yes, very quickly. I did do is in any way hold them up or try to expose them have the opportunity recently, as I know a number of or us to excess costs. It is a “working with”, very Members of Parliament have had, to spend a day in definitely. They are very clear about apologising and the NHS. I visited a local acute trust that serves my openness and so on, as was mentioned earlier. So we area. I was very impressed with the quality and the follow that guidance. services that were provided there. But the abiding memory is their care of the elderly wards and a couple Q303 Valerie Vaz: How do you explain the costs of issues in particular. I know this is the $64,000 going up, in your view? I know it is just an opinion, dollar question, but what measures can we take but why are they going up? specifically to improve the patient experience in care Dr Newbold: That is a wider question and I am for the elderly in particular? What can the hospital probably not qualified to answer it. It must relate to trusts do? decisions made elsewhere about the level of Helen Thomson: We can do the things we talked compensation. I would guess that expectations are about earlier, which is about re-abling patients and rising and treatments are getting more and more making sure they are not spending any longer in complex. I should think there is a whole range of hospital than they absolutely have to in an acute factors which impact on those rising costs. It wouldn’t setting; making sure that you have nursing staff who be my experience that hospitals are getting can respond to their specific needs particularly, and intrinsically any less safe. We are offering more and medical staff too; but also accepting the fact that in more complex treatments, some of which can have an acute hospital on any one day the majority of adverse outcomes, but there is a whole range of patients will be elderly. They might not be in those reasons why the bottom-line cost is increasing. I am wards. not an expert though.
Q300 Grahame Morris: I would say 80%. Q304 Valerie Vaz: You mentioned the duty of Helen Thomson: In surgical wards, the population is candour, and the Chair mentioned it before. Is that much older. So it is important to have staff who can right? Is it like a pre-action protocol where you have really respond to that. a series of questions coming in from the prospective litigant and then the trust has to respond to that? Is it Q301 Valerie Vaz: Finally, I want to turn to as simple as that? At that stage you can apologise litigation. The bill is going up. It is getting bigger and or not? bigger every year. How do you handle litigation in Dr Newbold: Yes. The guidance from the Litigation your trusts? Authority is that there is that duty of candour. I gave Dr Newbold: How do we handle the incidents? an example earlier. Yes, in my understanding that does Valerie Vaz: From start to finish. not compromise the Litigation Authority at all and we Dr Newbold: The Litigation Authority offers fairly are encouraged to do that. clear guidance on duty of candour and the elements Helen Thomson: And the same here. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG03 Source: /MILES/PKU/INPUT/011252/011252_o003_kathy_HC 786-iii - 26.04 to TSO.xml
Ev 58 Health Committee: Evidence
26 April 2011 Dr Mark Newbold and Helen Thomson
Valerie Vaz: Thank you. evidence as well. We will reflect on it and be Chair: Thank you very much. We have overrun our publishing our report sometime in the early summer; target time. Thank you for your patience and I am that is our ambition. Thank you very much. sorry to invade your evening, but thank you for your cobber Pack: U PL: COE1 [SO] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
Health Committee: Evidence Ev 59
Tuesday 10 May 2011
Members present: Mr Stephen Dorrell (Chair)
Rosie Cooper Chris Skidmore Andrew George David Tredinnick Grahame M Morris Valerie Vaz Mr Virendra Sharma Dr Sarah Wollaston ______
Examination of Witnesses
Witnesses: Desmond Hudson, The Law Society of England and Wales, Muiris Lyons, The Association of Personal Injury Lawyers, Carole Ayre, Browne Jacobson LLP, and Nicola Wainwright, Leigh Day & Co Solicitors, gave evidence.
Q305 Chair: Ladies and gentlemen, thank you very have to address the issue of liability. It is about getting much for joining us this morning. Could I ask you mechanisms in place to get liability resolved quickly briefly, please, to introduce yourselves and tell us and cheaply. which organisations you come from? Muiris Lyons: Good morning. I am Muiris Lyons. I Q307 Chair: Does anybody want to add to that? am immediate past president of the Association of Desmond Hudson: If I may, I want to build on Personal Injury Lawyers. Muiris’ point. Yes, clearly, mediation can be an Nicola Wainwright: Good morning. I am Nicola important tool in the armoury of lawyers, but there Wainwright. I am a partner in the clinical negligence may be a wider public benefit here. The written department at Leigh Day & Co Solicitors, who are evidence you have from Browne Jacobson, if I quote claimant solicitors. them correctly, as to the reasons why people bring Carole Ayre: I am Carole Ayre. I am a partner in the litigation is very instructive. By and large, it seems to firm of Browne Jacobson and we act for the NHS me, many of the individuals who go and see a solicitor Litigation Authority. have not made a decision or are not necessarily intent Desmond Hudson: I am Desmond Hudson. I am chief on the institution of legal proceedings. Very large executive of The Law Society. numbers of individuals are concerned about an explanation, an apology or, perhaps, a reassurance that Q306 Chair: Thank you very much. I would like to the individual or individuals responsible will be held start, if I may, by asking you some questions about to account in some shape or form. One wonders the mediation process. We have received submissions whether mediation—if I might use that word loosely from each of you suggesting that mediation has an rather than as a term of art in terms of ADR—could important role to play in resolving disputes between play a very important role. It is certainly the view of claimants and the NHS, and that is normal good The Law Society that it could have wider benefits, practice by people acting on behalf of complainants. other spin-offs, which go simply beyond it being a Do you feel that system is working well, that formalised or semi-formalised part of a litigation or complainants feel they have access to real justice dispute resolution process. through the mediation process, or does it too often Carole Ayre: Once you have got well down the track feel to the complainant like a push-away and a sense of litigation, it is quite hard to move into a formal that they are being advised, in a rather heavy-handed mediation process. We find there are many ways of way, to avoid a head-on collision because their best resolving a claim without, necessarily, having to go deal is going to be through something that leaves them through a formal mediation process. There are many feeling dissatisfied with the process? types of ADR which are employed to settle claims. Muiris Lyons: If you would like me to, I will go first As to how the claimants feel about formal mediation, on that. Mediation is a valuable tool in the lawyer’s I don’t think I can answer that because. Obviously, I toolkit to resolve cases on both sides. It is not used as don’t act for claimants. often, perhaps, as it could be, but the NHSLA don’t Nicola Wainwright: If I can come in on that, as has enter into mediation on issues of liability. As a general been explained, formal mediation is only one form of rule, they are happy to mediate once they have ADR and, to be honest, has happened relatively rarely. admitted liability and they will discuss how to settle Formal mediation, when the client is actually in the the claim. Therefore, from that point of view, it is a room and feels they are playing a part in the whole tool that can’t really help resolve the liability issues. process, can be very useful. On the opposite side, if The key with all of these sorts of claims is to try and the other party isn’t buying into the mediation and is get the liability issue resolved as early and as there purely to comply with court directions, it is a economically as possible. Most cases, once you get very frustrating and upsetting experience for the liability out of the way, will settle through one form claimant. of ADR or another. It might be mediation—it is most In the last 10 years, I have been to two formal likely to be a round-table—or it may be through offers mediations. In the first, the claimant was very happy being made. It is a valuable tool, and one that I know because he felt his voice was heard. He was able to the Government is keen to move forward, but you show the defendants why he was unhappy and they cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
Ev 60 Health Committee: Evidence
10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright accepted that, which, for him, was vitally important. Q311 Valerie Vaz: Is that the delay? In the other, the defendant refused to negotiate at all. Nicola Wainwright: There are a number of factors. We sat in a room for half a day and then they went First, as Muiris said, part of the problem is the home. claimant has to prove that something was wrong. I From our point of view, if both parties are properly should say “part of the issue”. It is not necessarily buying into it, it can be very helpful. seen as a problem by the NHSLA or other insurers. For the claimant, that means there is a lot of work that Q308 Chair: But you agree, do you, that, in the goes into even putting the case to the defendant. They majority of cases, it is only really useful once basic have already gone through that process by the time liability has been accepted? It is not a process for they are in a position to do anything, unless the determining liability. defendant is willing to make an early admission. Nicola Wainwright: Yes. Also, from a claimant point Obviously, costs are going to be incurred in any event. of view, before you have reached the point of Our experience with the pre-action protocol is that, in investigating liability, there is no equality of arms. If many cases, it has led to further delay in that we serve you ask a claimant to go in right at the beginning of a letter of claim, the letter of response doesn’t really the process, when they have very little knowledge and add anything to what was said in the complaint and it they don’t have their own expert evidence, they feel is only when we issue and serve court proceedings at a disadvantage to the NHS which already has that the claim is taken seriously. That is one of the some knowledge. issues. Carole Ayre: I can only speak from where I stand, Q309 Valerie Vaz: From the legal point of view, has which is usually after a letter of claim has been the pre-action protocol in clinical negligence cases received and, very often, after proceedings have been and the role of the judge in case conferences helped issued. When we first get a claim, it is obvious to us to move things along? that the issues are not necessarily straightforward and Muiris Lyons: I can probably deal with the protocol the allegations being made at the point at which in question because I have just been looking at that. proceedings are issued are not necessarily the same The current protocol for clinical disputes doesn’t even allegations as were originally made, either in a refer to mediation. We have proposed a draft—which complaint or, indeed, in the letter of claim. Thus, has industry-wide approval and is with the MoJ at the while the claimant has already done a lot of work in moment—which is more than paying lip service to investigating liability issues, for us, acting for the mediation. It is encouraging active steps to be taken NHS Litigation Authority, there is a lot of work to do with ADR throughout the process. That was sadly before we are in a position to respond to the case. lacking in the original version of the protocol. However, since the NHSLA have started instructing Once you get to a court, of course, the key is issue is experts before responding to the letter of claim, that that you have to resolve the liability. Once you do has speeded up the response to the claimant. There has that, judges are very keen to encourage ADR and you been a sea change there to great advantage in terms of can do it in a number of different ways. Once liability the delay issue. is out of the way, these cases do tend to settle. The NHSLA’s own statistics show that trials are very Muiris Lyons: May I add that, with the proposal for rare—113 in the last three years. Cases going to court a revision of the protocol, which is with the MoJ, the are quite rare. Once liability is resolved, either the idea is to introduce a new intermediate step to try to claimant disappears out of the picture because there is speed things up even further. The difficulty at the no claim, or liability is admitted and the parties are moment is that a claimant will send a request for able to reach a sensible compromise. medical records to an NHS trust but the trust simply doesn’t have the resources to investigate, properly, Q310 Valerie Vaz: Before we go on, does that gap every case where records are requested. The claimant between the claim and admitting liability take longer then goes away and starts preparing his own case, with the Litigation Authority? Could you see that getting reports in and so on, and more details are move to a much earlier resolution? given during the course of the case. Muiris Lyons: You may be aware that there are The idea now is that you have an intermediate stage discussions at the moment. I am involved with the where you give almost a heads up to the hospital. You NHSLA about a new fast-track scheme for handling say, “We know you are not going to investigate this lower-value claims based, roughly, on the RTA case straightaway but, to let you know, we have a process that has been in for about a year. The idea report that is supportive. You might want to look at there, in lower-value claims, is to get the issue of this case now and save yourselves some time so that, liability resolved very quickly. Therefore, you bring by the time we get to the letter-of-response stage, you down expense and reduce the time involved. That is are in a position to give a more detailed response.” an initiative everybody welcomes, because at the heart That has the support of the NHSLA and all the of all of these cases is getting a response on liability indemnity organisations for doctors. If we can get that as early as possible, but it has to come, as has been introduced, it will reduce delay and streamline the said, at a time when you have equality of arms. The process and, that, of course, saves costs for everybody. claimant has to have had their own medical records Carole Ayre: I would like to make the point that I am and had a chance to see what is in them before you left in absolutely no doubt my job is to make sure can start saying to the NHS what you think they did that, where admissions are appropriate, they are made that was wrong. as soon as possible. The Litigation Authority, the cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
Health Committee: Evidence Ev 61
10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright
NHS, has no interest in a denial of liability where it management companies out there looking for claims is appropriate to make an admission. as well. Desmond Hudson: I would make two points briefly, Secondly, in terms of the actual value of claims, there if I may. The first is that it strikes me, if you were has been significant damages inflation. A number of thinking about this from the point of view of cases have resulted in a hike in the value of claims to claimants’ costs—where, clearly, the public purse may keep pace with the cost of care, etcetera. All these have to pay some or all of those claimants’ costs in things have conspired to bring us to where we are, but certain types of cases—one of the consequences of the it is not necessarily a bad thing if people have claims pre-action protocol is that it front-loads costs. It seems to make. to me that, within the drafting of that protocol, the Nicola Wainwright: That would be my point. The rise desire to be sure this is a valid claim—the need to be in complaints suggests more people are unhappy with able to demonstrate that at the outset, and for good the care they are receiving and, before we start reason—means you are incurring costs at the looking for other possible reasons, we should be beginning. thinking about the fact that perhaps the quality of care The second point I would make—I think I am right in they are receiving is not of the standard we would like saying it was the last question you raised—relates to it to be. To bring a clinical negligence claim you have the question of case management by the judiciary. to show that the care wasn’t reasonably competent. Certainly, it is a concern of The Law Society that the We are not just suggesting that the care is not perfect. current range of options open to the judiciary to That is where any analysis should start. intervene in and manage cases could be used much Although there has been a rise in damages, more. It is no secret that the Law Society is very compensation in this country is relatively low, concerned and unpersuaded as to the merits of Lord particularly for pain, suffering and loss of amenity. Justice Jackson’s report. However, one of the things Most clients are not fully compensated even if they we think very important, even within the existing succeed in full in a claim because, obviously, there arrangements as the procedural rules and the law stand are reductions and they have been put to a lot of cost today, is that judges, perhaps with the need for some as a result of their injuries. They are no longer in a judicial training, could take a much more invasive role position, for example, to go out to work and earn in terms of managing and incentivising good money so that they can put themselves back in the behaviour, and in costs management. That is same position, or they have to pay for care whereas, something we think bears further urgent inquiry. previously, they would not have had to.
Q312 Mr Sharma: What are the main reasons for Q313 Grahame Morris: Can I come in on that? It is the increase in the volume and the value of claims quite a pejorative statement to make that the standard against the NHS? of care and treatment is deteriorating. On what basis Desmond Hudson: Perhaps I might have a go at that. would you make that assertion? How many years have It is important to look at two factors when we talk you been involved? It strikes me that it is at odds with the Ipsos MORI survey of public satisfaction with the about the increase in the number of claims. One can’t NHS and doesn’t take account of the dramatic look at an increase in the number of claims without increase in activity. Over what timeframe, in your looking at the level of activity within the NHS. If the experience, are you making the judgment that the number of people being admitted into the NHS was standard of care and treatment is deteriorating? falling and claims were rising, that would be very Nicola Wainwright: My experience is only since I concerning. If claims were rising in proportion, let us have been involved, but I am also coming from a say, to increases in activity levels, that may be less of lawyer’s perspective. All I can comment on is what a concern. It is my submission that the numbers we my clients tell me and what our experts tell us. A lot are seeing here are moving in proportion to the of our experts, in conference, are commenting that the increased throughput or activity within the NHS. NHS isn’t as it was, that, as it is becoming, they don’t What is also worth noting, if you look at the number want to work in it and that there are lots of pressures of incidents where harm is caused to patients and the on them from different areas; for example, the EU number of complaints made, is the proportion that Working Time Directive affecting training and the become claims under our present system is a fraction. lack of resources affecting staffing. All of those issues In his 2010 report, the chief executive of the NHSLA come into play. There are some statistics that suggest was talking about it being a figure of 1% of those there is concern about the quality of care. For incidents which transferred to litigation or a claim. example, the National Patient Safety Agency, and I As to the cost of claims, it is inevitably the case that— think the Royal College of Surgeons carried out a if I can put it this way—the inflation in damage survey which suggested their members felt there had settlements has romped ahead of RPI. That seems to been a reduction in quality of care. I can’t, at this be very largely driven by judicial decisions and point, tell you over what time they were doing those actions as well as the costs that are taken account of. surveys, but I am happy to check that and report back. Carole Ayre: We have made the point in our paper The British Medical Association has also issued a about the increase in activity in the NHS. The two key survey. Therefore, there are some surveys, but, things, to my mind, are, first, there is a very highly obviously, I don’t think anyone has sat down and said, developed claims market. People are very much more “If we compare care in 1975 to now, what is the aware now of their ability to make complaints and difference?” Lots of my evidence is anecdotal, but I claims. There are some very active claims am afraid lots of clients come in feeling— cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
Ev 62 Health Committee: Evidence
10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright
Q314 Valerie Vaz: That is on the basis that you see Nicola Wainwright: We are being paid for our legal the bad end of it rather than the good, which is the time and not paid for all of it. 30%. Nicola Wainwright: Of course. Q319 Chris Skidmore: How much do you charge Muiris Lyons: May I make an observation? The NHS per hour, for instance? provides 3 million patient treatments a week. It Nicola Wainwright: On what? Do you mean— employs 1.5 million people. It is a massive Chris Skidmore: For the cases you take up, how organisation. Inevitably, mistakes are going to be much are you charging per hour? made. Most of the time it is not doctors making a Nicola Wainwright: For some of them, we don’t get really crass error but people falling between two paid at all. For some of them we get paid £70 an stools, maybe on a hand-over from one doctor to hour—a hairdresser charges more than that—and they another or one department to another. It is people are probably the majority of our cases. On the others, falling through gaps in the system. we can claim, obviously, on a “no win, no fee” basis What we have, though, is around 10,000 claims being but we only get paid for the ones we win; that is, notified each year. Although we recognise that in the when we prove the NHS was negligent. last three years there has been an increase in the number of claims, it is important to look at the Q320 Chris Skidmore: On those cases of the “no perspective because we have only now reached the win, no fee”— position we were at 10 years ago. The claims now are Nicola Wainwright:—we receive a success fee to at broadly the same level as they were 10 years ago. cover the cases where we didn’t succeed which was They have dipped in between. Contrary to the the whole process— perception of a “compensation culture” and claims being out of control, we are only back at the position Q321 Chris Skidmore:—the NHSLA has suggested we were 10 years ago. rates of £409 an hour. Nicola Wainwright: They can be up to that, yes. Can Q315 Chris Skidmore: It is not true, then? I also say that comparing claimants’ rates and Muiris Lyons: It is not true. defendants’ rates ignores the difference between the two parties, and there is a big difference. The first is Q316 Chris Skidmore: In terms of the costs— that, of course, the NHSLA bulk buys services Muiris Lyons: The number of claims— because it has a volume of cases. It also supplies lots of its panel solicitors with other work. The defendant’s Chris Skidmore: Yes, the number of claims. solicitors are generally paid for all of their work and Muiris Lyons: Costs have gone up. at the rate they quote. Also, they are paid, probably regularly, every month, whereas, even when we are Q317 Chris Skidmore: Costs is the crucial issue paid, it is at the end of the case, which may be three here. You have got £102 billion going to the NHS and or four years down the line. it has now reached £650 million being sucked up by the costs of claims and legal fees. To what extent are Q322 Chair: I don’t want to turn this into a fee you happy for that to rise even further to £2 billion negotiation. Could we have the other side of the story or £3 billion? You seem to suggest, Nicola, that the from Browne Jacobson at the same time and then compensation claim rate, in comparison with other perhaps not come back to the subject? countries, is low. Would you be happy for the £650 Carole Ayre: Going back to the question about the million figure to rise even further? amount that is paid out in damages, I’m not sure if Nicola Wainwright: I can only come at this from my the Members are familiar or aware of the discount perspective, which is, of course, on behalf of my rate, which is the rate one applies when working out clients who have suffered an injury. Obviously, from future losses. When I started doing clinical negligence my point of view, that is where it has to start. These work, in about 1997, the discount rate was about people have been injured and they deserve redress and 4.5%. Because of the fall in returns on investments, justice. If, unfortunately, that costs, that is the that discount rate has fallen. At the moment it is 2.5% position. The alternative is to suggest that they and there is currently a move to reduce that still shouldn’t be compensated despite the fact they have further. That has made a very significant difference to suffered an injury through no fault of their own. I the damages awarded to claimants. It is not just the don’t think that is satisfactory either. No, I don’t want number of claims. It is the actual value of those costs to continue rising unnecessarily but, at the same claims. time, the priority should be the patient and patient safety rather than just looking at the cost of it. Q323 Rosie Cooper: The value that should be paid Looking at the cost in comparison to some other costs out is proportional to the injury caused, and the big the Government incurs puts it in context. Although claims are often in childbirth and whatever, so they £800 million, obviously, is a lot of money, a lot of have to be proportional. It is either right or it is wrong money is spent on a lot of other issues. This is about and it is just or it is not. I don’t particularly like the safety and justice. tone of this in the sense that it is about paying the appropriate amount and not just what we can get away Q318 Chris Skidmore: But it is not just the patients with. I think that whole tone which is creeping in here being compensated, is it? You are being compensated is not helpful. If you or your family have suffered an for your legal time and how much— injury, then you don’t want it to be compounded by cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
Health Committee: Evidence Ev 63
10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright whoever did it walking away and/or you not getting claims management company’s costs in clinical the proper recompense. I often say that the NHS will negligence to be borne by the public purse? Is there save your life but may leave you dying because it is anything that says that is justifiable? the care bit afterwards that there are often many The public legal education argument that suggests questions about. That is the easy bit. But when you making sure people know of their rights and their are getting the actual saving your life bit wrong too, ability to bring forward their rights, we think, is it is really dreadful. I am sorry, but I felt I had to say appropriate. The question is whether that should then that on the record. be a business that generates costs: I aggregate, Carole Ayre: That is why I make the distinction originate claims and sell them to other people— between damages and costs because they are a lawyers—who have to recover that cost somehow. In completely different issue. Again, when I started in this example they are going to be recovering it from 1997, a birth injury was probably £1.5 million and it the National Health Service and in PPI and the banks is now £4 million, £5 million or £6 million. That is they are going to recover it from the banks. We are damages. That is nothing to do with Leigh Day’s costs suggesting there may be alternative ways in which or our costs. I can see your point. that public legal education process could be Rosie Cooper: Absolutely. I do get that, but there was undertaken. It might be done, for example, by the a tone creeping in that, with your costs, you have to legal profession—The Law Society or the Bar do your best for the right price. Nobody should not Council—acting in a way that perhaps avoids the get justice because there is a row about £70 or £100. excesses and the unwholesome nature of some of the It is absolute nonsense. very strident marketing and cold calling that we are Chair: You have probably covered that. I suspect seeing claims management companies undertaking. everyone on the Committee would agree with that There are significant improvements that we could proposition and I suspect all the witnesses would as make as a society in intervening and clamping down well. against this practice and, by looking at public legal education in a more measured way, we could ensure Q324 Dr Wollaston: Can I return to the area of that our fellow citizens are not disadvantaged when claims management companies? We have already they should be aware of a right to make a claim. heard that only about 1% of injuries result in a legal Carole Ayre: My view would be that they don’t add action. We have heard from Ms Wainwright that there any value to the process at all. I noted in the Law is an argument for saying people should be pursuing Gazette the other week a survey had been undertaken claims, but, of course, the impact on the NHS, if 100% indicating that over 50% of the adult population had of people went down that route, would be devastating. been cold called by a claims management company. I We also know that the Legal Services Board is am not sure it is the role of claims management consulting on whether these referral fees should be companies to educate the public about their rights, but restricted or whether we should regulate the I suspect the genie is out of the bottle. inducements. Could you give us your views on those aspects? Q326 Dr Wollaston: How would you get rid of Desmond Hudson: I will start on behalf of The Law them? Would you do it by preventing them charging Society. Claims management companies are almost these referral fees and preventing them paying entirely dependent on the payment and receipt of inducements? referral fees: I originate a bundle of cases because I Desmond Hudson: If I could offer an answer to that, advertise on daytime TV and I sell them to solicitors. the Legal Services Board could introduce a rule across Or, I am an insurance company, I provide legal the entire legal services market that prevented the expenses insurance as part of my policy and I then payment or receipt of referral fees in relation to legal run an online auction to sell those cases to solicitors. services. We are suggesting that referral fees are not in the Dr Wollaston: That would, effectively, put them out public interest, that they are adding an unnecessary of business. Thank you. layer of cost and that the claims management companies provide little, if any, positive service. I say Q327 Chair: It would, but presumably the argument “little, if any” because I do think there is an important they would make is that, however good your public and complex issue here about public legal education. legal education, they secure access to legal redress for If I may, perhaps I could use the example of the precisely the cases that Rosie was talking about— current furore about PPI. There is an interesting people who have suffered an injury and are entitled question, it seems to me, about whether, if I am— to compensation. Desmond Hudson: Yes, that’s right, which is why we Q325 Dr Wollaston: Could you clarify for people slightly differ. I can see some benefit in what claims what PPI is? management companies are doing, but I would submit Desmond Hudson: It is payment protection insurance. that there are more appropriate ways we could deliver You will remember that the banks have said they will that utility. not pursue their legal argument. It was said, in many Valerie Vaz: That’s a job for the Law Society and instances, that banks have mis-sold payment good lawyers. protection insurance which is designed to pay my Desmond Hudson: Yes. mortgage if I lost my job or, let us say, I was injured. Is it reasonable for a claims management company’s Q328 Chair: Is there any evidence of the cost—not costs to be borne, in that example, by the bank, or a of the additional compensation paid as a result of their cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright activity, because that, on the test we have just Rosie Cooper: I would probably disagree. established, is legitimate—of the referral fees Desmond Hudson: Perhaps we should discuss that. themselves and, therefore, the cost of the additional access? Q331 David Tredinnick: If the claims management Muiris Lyons: There is no extra cost to the NHS companies are performing unsatisfactorily, and you because, if referral fees are paid, they are borne by say they are not professional, surely there is a problem the solicitor who pays them out of the fees they would with the regulations as they are at the moment and recover for the work. Solicitors have a choice. They that needs to be addressed. Never mind whether we can either pay for the marketing and advertising remove their ability to charge fees—that is a totally themselves or they can sub-contract it to someone separate issue—we shouldn’t have any organisation else. A lot of them do that through claims operating that is incompetent. I would like to ask for management companies. The MoJ say there are now your comments on whether or not you think claims 2,500 claims management companies out there acting management companies have adequate regulation as as middle men. At my organisation, APIL, we have it stands, please. never seen a role for them. If you need a plumber you Muiris Lyons: Des is probably more of an expert on don’t ring up a plumber management corporation to the regulations, but my understanding is that, whereas have your case referred on. You can ring a lawyer solicitors have quite tight professional regulation, direct. We accept that there are roles for education and claims management companies come under the awareness and promoting people’s right to access to Ministry of Justice where there is more of a light justice—that is very important—but there are issues touch regulation. It is principle-based and it is about about taste, decency and the scope and nature of making sure you don’t get things terribly wrong as advertising that do need to be addressed. opposed to keeping you on the straight and narrow. It Carole Ayre: And also about the ability of the firm is a different way of regulating. that buys the claim to properly deal with the case. I Desmond Hudson: Claims management companies don’t know whether firms like Leigh Day & Co use are regulated in this country by the Ministry of Justice referral companies—they are, clearly, very skilled in directly. The Law Society’s view is that the regulation dealing with clinical negligence so the claimant is not of claims management companies could be disadvantaged by that—but we do deal with some significantly improved. That said, we have to claimant firms who, frankly, don’t know one end of a recognise the complexity of the task that the MoJ clinical negligence claim from another. We pay them faces and the legal profession, including the solicitors, very high fees, yet they are not able to deal with the have to recognise that our members are buying cases claim effectively and rely heavily on counsel. and paying referral fees. If you look at, for example, the way insurance companies, who do not necessarily Q329 Chair: Independent of the claims management use claims management companies, would run an company issue, if an injured party is being represented online auction, let us say, for all the cases involving by an incompetent solicitor, that is an issue for the motor cyclists in Greater London, I might easily pay Law Society, isn’t it? £900 a case for that. We are saying, in that instance, Carole Ayre: You can’t call them incompetent. It is we believe there should be an obligation for explicit just that— disclosure that is happening so that the consumers of Chair: If I may say so, you just did. insurance policies can make informed choices, and Carole Ayre: I did, yes. perhaps the wider community can take a view as to Muiris Lyons: You mean less competent, maybe. whether we think this is appropriate business practice. Carole Ayre: Less competent, yes. They are unsure If I go back to claims management companies, how to proceed, they can’t value the claims because solicitors are making these payments and themselves and they are unsure about the liability because we try to enforce our rules, which are quite issues. Therefore, they rely heavily on counsel. tough, I don’t think our own enforcement is ideal and Desmond Hudson: That is not necessarily a sin, is it? some solicitors perhaps make mistakes or break the It is a breach of the rules of professional conduct for rules in the terms under which the payments are made. a solicitor to take on a case that they are not It would be convenient for me to blame the MoJ and competent to handle. say they were badly regulating claims management Carole Ayre: No, but it is unnecessarily costly. companies, and I think they could do better, but there Muiris Lyons: The key point is, isn’t it, that referral is a need for improvements and changes more widely fees lead to cases being referred to the highest bidder, than that. If I may, I repeat my basic submission that whereas we would much rather see cases going I do not believe claims management companies are through accreditation schemes which show you are acting in the public interest. getting a good lawyer who knows what they are doing? Q332 Grahame Morris: Can we move on to some of the changes, in particular, in relation to success Q330 Rosie Cooper: The Law Society, accreditation fees? The Committee has been advised that the schemes and legal aid—that’s a mess I don’t think we Government are proposing these will no longer be want to go to, do we? recoverable from the NHS when a claim is successful. Desmond Hudson: I’m not sure I understand the basis I would like to ask Mr Hudson from The Law Society of your point. I would say that the accreditation what the implications of that are likely to be and invite schemes in the Legal Services Commission, which I comment from the others. Also, could you touch on was also involved in, work comparatively well. what the impact would be of the proposed changes in cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright the system of legal aid where it will no longer be those who have relatively simple road traffic accident available to claimants in clinical negligence cases and claims. The whole purpose of the report was to try to CFAs will have to be used instead? Could Nicola, in control legal costs and it has missed the fact that those particular, give us her views on that? I would be cases are now in a fixed-cost, fast-track streamlined interested in your views on those—and I know we process anyway. That problem has been resolved. The haven’t got a lot of time. 39% of claimants who are going to be worse off under Desmond Hudson: The consequence of what is those proposals are the ones with difficult cases, proposed, removing CFAs, coupled with what is also primarily clinical negligence cases, which are very proposed by the Government in terms of the civil legal difficult to run. That is what Lord Justice Jackson says aid system, will mean that the courts will only be used about it. The Ministry of Justice themselves, in their by the beneficiaries of charity, the very rich and impact assessments, say they expect to see fewer powerful, or someone who has a case that will pass claims being brought after these proposals. They the economic viability of being funded by the lawyer. couldn’t be clearer than that in terms of its That is likely to mean that we will continue to see implications for access to justice. rear-end shunts and whiplash cases being brought Desmond Hudson: I think MPs’ surgeries are going because they will be cheap and easy cases to finance to be busy. speculatively by a solicitor. The very difficult, complex cases of causation and liability will be Q333 Chair: Browne Jacobson, in their evidence to unlikely to be brought. The Law Society asserts there the Committee, said that conditional fee arrangements is a very significant danger that we are going to see a were a gravy train. generational change in the concept of access to justice Carole Ayre: Yes. in this country if these sorts of things go through. CFAs—conditional fee agreements—are the Q334 Chair: I wonder if you could just explore that mechanism that was introduced by previous with us because it has not sounded like a gravy train Governments to finance the bringing of cases for for the last couple of minutes. people who were of moderate or average means as Carole Ayre: No. First, claimant lawyers are permitted legal aid retreated. The CFA system, conditional fee by the courts to recover a much higher hourly rate agreement, works on the basis that I can recover my than defendant lawyers, not because defendant success fee against someone I successfully sue. We lawyers are particularly philanthropic towards their have decided that we will pass that cost to the NHS clients but because the market has driven down the and to insurance companies rather than carry that cost amount they are prepared to pay us. Secondly, a lot of through a legal aid system. As I say, not only do I claimant lawyers—not all of them, but quite a lot— think we will we see a very marked change in access would have it that clinical negligence work is so to justice, but we will also see rejoicing in the complex that it justifies an uplift in the base rate. boardrooms of insurance companies. It will be a great Thirdly, you apply the success fee, which can be up day for insurance companies if these changes go to 100% but is probably more like 50% or 60% on through. average. I don’t have any stats, but that is probably Nicola Wainwright: From a claimant point of view, I more or less where it is. would agree. I don’t think it can be emphasised We arrive at a situation where the claimant lawyer has enough that access to justice will be denied for the opportunity to make a several hundred per cent probably the majority. With the combination of the uplift in his profit margin—not 100%, but several change to CFAs and the removal of legal aid, both hundred per cent uplift in his profit margin—without low-income and middle-income earners will find it any constraint over the way in which the work is done, very difficult, if not impossible, to obtain legal advice because the client has no interest in the cost, there is and assistance. Their only option will probably be to no insurer—it will not be BTE insured—keeping an become litigants in person, with which, obviously, eye on how the work is done and there is no legal there is a complete inequality of arms, or rely on aid body keeping an eye on it. Therefore, there is no advice centres or similar. The number of solicitors moderating influence on the way in which the work is doing clinical negligence work will diminish because done. They don’t need to worry about that when they fewer will be able to make it work and make it are litigating a claim. profitable. Solicitors will not be able to afford to bring cases on a “no win, no fee” basis when the success Q335 Chair: Apart, presumably, from their judgment fee doesn’t compensate them for those cases they lose. of the likelihood of recovery of the success fee. Cash flow is a real issue for some firms, with the Carole Ayre: We hardly ever see a claim brought removal of legal aid. At least legal aid gives us some which fails—only 2% of cases. I know that a lot of money as we go along, at a very reduced rate. That cases are looked at before— means that, throughout the life of cases, we will not Muiris Lyons: I am sorry, but that isn’t right, is it? be paid. There is no form of payment that pays us as Carole Ayre: Let me finish— the case goes along once legal aid goes. The effect Muiris Lyons: The NHS’ own statistics show that cannot be underestimated. 40% of claimants discontinue their cases. Muiris Lyons: Lord Justice Jackson himself wrote to Carole Ayre: Let me finish what I was saying. When the MoJ after getting an economist to help cost the I see cases which are litigated, they are not risky proposals and he said that, under his proposal, 61% of cases. I appreciate, understand and accept that a lot of claimants would be better off and 39% would be cases are looked at and letters of claim are worked up worse off. Those who are better off are, as Des says, and sent before they ever get to us. I understand that. cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright
But I do think the balance has tipped so that there is Inevitably, if we are going to say, “You, the lawyer, an overcompensation which is disproportionate to the must fund this and you are not allowed to take your risk. I am not saying it is improper, illegal or anything costs from the client’s damages” then I have to charge like that. The point I am making is that where you more in the cases that I win because I am going to have a situation in which—and we have got various lose some. examples—there is a claim worth £5,000 and you It is absolutely the case that if I bring a case which receive a bill for £70,000, an objective bystander, I goes before the courts and the defendant is unhappy would suggest, would be bound to think that with the way in which I am seeking my success fee something has gone a bit awry and that that was not or the way in which I have conducted the case, they intended. can do one of two things. They can challenge that before the courts or they could report malpractice by Q336 Chair: Your case, in a nutshell, is that the solicitors to the Law Society. There is an obligation absence of regulation, either by the insurance on every solicitor, every one of us here, to do that company or by the legal aid system, is leading to where we find someone has acted improperly. If it is claims being taken up that are being handled the case—assume that this is happening all over the expensively, ultimately at the taxpayer’s expense. place—that should be happening, if precedent cost Carole Ayre: Yes, I think so. I am not suggesting this cases were established by the courts the rest of the is deliberate. It is just that there is no pressure. profession would have to fall into line. Can I make one final point? If I am financing the case Q337 Chair: It is a market. If I can develop your at my personal risk—as, for example, Leigh Day have argument one stage further, we have heard that these done in some instances, because that is how the CFA claims management companies have grown up to system works—what advantage is there to me in handle access to cases like that, which suggests that ramping up costs that I am paying for? I am taking they are quite profitable. the risk of that. I have to balance that risk in terms of Carole Ayre: Yes. They are very profitable, yes. my firm’s balance sheet. There is every incentive for me to act prudently, never mind the ability to be Q338 Valerie Vaz: I am getting confused. I have sat reviewed before the courts and be subject to the code as a deputy district judge and I have scrutinised bills. of practice that applies to every individual solicitor. There must be some sort of mechanism for doing that Carole Ayre: Can I make the point that I did not and judges have knocked fees off in a huge way. accuse claimant lawyers of indulging in malpractice? Judges can look at the complexity of the case and The point I was making is that there is no downward say, “This requires an uplift.” Does that not happen in pressure on the way in which they conduct their these cases? litigation. The court rates reflect the market rate. Muiris Lyons: It does. There is no point in taking a case to detailed Desmond Hudson: It does and it is open to the assessment if the district judge is going to reflect the defendant—Forgive me, after you. market rate and take the view, “This seems reasonable Nicola Wainwright: Every claimant bill is subject to because this is what other claimant lawyers do in their detailed assessment, which the client can ask the judge cases.” It is very difficult, and it is not as to assess and the defendant can ask the judge to straightforward as it first appears, to challenge every assess. claimant’s bill. The district judge may not agree with Carole Ayre: Every claimant bill is not subject to detailed assessment because not every claimant bill is you. If you are faced with a CFA, a success fee of taken to detailed assessment. 100% and the cost draftsman employed by the Valerie Vaz: If you want to, you can. claimant’s solicitor is also on a CFA, it is a very Muiris Lyons: You can if you want to. You have the expensive business to take a case to detailed opportunity. assessment. You could be adding £20,000 or £30,000 Carole Ayre: If they were taken to detailed to the bill in a big case if you don’t get your offer assessment, the courts would never be open for any right. other matter. Q340 Chair: Is there any evidence that can be Q339 Rosie Cooper: Why don’t you challenge— produced of the legal fees that have been paid over a Carole Ayre: We do challenge things. period of years associated with these injury cases by Rosie Cooper: If you believe that, why don’t you the NHS? We can see what the cost of damages is. challenge each and every one? Until you challenge Can we see what the cost is that the NHS is paying each and every one, this practice won’t stop. If that is through the CFA system and compare that with what what it takes, then you should be doing it. was being paid out of public funds in the previous Desmond Hudson: Assuming this practice exists in system? the way you have heard—and I have to say, with great Muiris Lyons: The NHSLA produce an annual report respect to Carole, I would differ here—the very nature each year which has a number of graphs, and those of a conditional fee agreement with a success fee is were provided to Lord Justice Jackson. One of them— designed to say, “In the case I win I get more than my and I can make sure the Committee receives it— standard costs because I am going to lose some.” As shows costs in publicly-funded cases, costs in we have heard, from the NHSLA’s own figures, of the before-the-event insurance cases and costs in CFA clinical negligence claims brought in 2009–10, 40% cases set against the damages that are paid out. It will were closed without a payment being made. show you exactly the impact of the different cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright mechanisms of funding in proportion to the levels of take on because we properly risk assess. That isn’t a damages that are paid out. failing on our part. That is us doing our job and it helps the NHSLA because they do not have to deal Q341 Chair: Those are the key variables plus, of with cases that aren’t likely to succeed. course, the principle of access to justice as well. Muiris Lyons: Yes. Q344 Chair: I don’t want to prolong it, but the Desmond Hudson: Also, if I may say, very briefly, argument that Carole Ayre would have been making the decision we have taken hitherto that it would not is that, with some of the cases that you did take to be appropriate to require the claimant to pay costs success, it is, in principle, possible you made a from their damages. If we looked at, for example, a judgment that you could get them to success but only North American model, that would be very different. at the expense of putting more public money, There, it seems to me, there is a very important public ultimately, behind that case than the legal aid process policy decision for Parliament to say, “What do we or an insurer might have been prepared to commit. want to do?” At the moment, because of the way the Nicola Wainwright: I don’t necessarily think so. I CFA system works with the reducing of legal aid, have to say again— there are costs having to be paid by the defendants— by the NHS. One other option would be to say, “We Q345 Chair: But you acknowledge that it is a no longer subscribe to the importance of a wronged individual retaining 100% of their damages.” possibility. There is a choice that has to be made, but at some Nicola Wainwright: Theoretically, but I don’t think, point reasonable costs—and costs should be practically, that is how it works. reasonable—have to be paid by somebody. What we are looking at is trying to find the appropriate choice Q346 Chair: The best way of establishing whether it as to where that risk or burden lies. has happened is some of the evidence that the Litigation Authority has generated. Q342 Chair: This is an important issue that has Muiris Lyons: It is. It is worth observing that, at the evolved in the last 10 minutes in this conversation. moment, the Government proposes to remove success The Committee would be interested to see the fees altogether being paid by the NHSLA, whereas, as evidence that you referred to produced by the an organisation, we have called for success fees to be Litigation Authority. We would also be interested to fixed. It is not about the solicitor picking a number see the comments, both of Browne Jacobson and of out of the air, as Carole seems to think we do, and Leigh Day, on the public policy implications of these then trying to justify that. We will be saying that if arguments from the two different perspectives. the NHSLA admit liability, say, within the first four Nicola Wainwright: I would like to be able to months, then they don’t pay any success fee at all. comment on what the representative from the They get the benefit of getting their response right and defendants say. Whether you want me to do that now getting their risk assessments right. But if they pick a or in writing, I would rather not let some of those fight, deny liability and are subsequently shown to comments stand as accepted. I am happy to do it in have got their risk assessment wrong, then they should writing, but I could be quick. be paying the success fee. Without success fees, we won’t be able to provide the access to justice to clients Q343 Chair: I am conscious that we will have a who otherwise won’t be able to afford to bring these Minister waiting outside in 10 minutes and that there cases themselves, particularly in the absence of legal is some other ground we want to cover, but would you aid. like to respond briefly? Nicola Wainwright: Yes, very briefly. There seems to Q347 Chair: We are getting into a competition for be a misconception. First, CFAs were designed that the last word now. the success fee on one case pays for those you don’t Carole Ayre: I will be very brief. The NHSLA do not win. When the defendant says that there are not any go round picking fights for the sake of it. All I am cases we don’t win, that is because we risk assess very saying, in essence, is that the amount we are paying well. Therefore, the cases we take on and which incur out in success fees is too high and is disproportionate costs for the NHSLA are ones we are likely to win. to the value of the claims. That is all. Those costs can be controlled by, if anyone, the NHSLA settling them earlier. Secondly, we are constrained by after-the-event Q348 Rosie Cooper: I have a quick question. How insurance. We would never advise a client to go ahead inhibited are you by the delay with medical reports on a CFA without insurance. We have to show and things like that? Is that the cause of some of that reasonable prospects of success for them. They keep delay? an eye on what we are doing. Above and beyond that, Carole Ayre: Sometimes it is. I am not quite sure what we have a duty to do the best for our clients. All delay we are talking about here. Are we talking about solicitors, I believe, are doing that. Why would we put delay from the time complaint is made or getting to somebody who has already been injured, lost money the end of the case? and lost trust in professionals through a process for the sake of it, in addition to which we then wouldn’t Q349 Rosie Cooper: Does the process of gathering get paid for that work? It doesn’t make any sense. The medical, professional or expert witness reports delay fact is we investigate a lot of cases which we don’t you very much? cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright
Carole Ayre: It can do. If you would like me to tell Muiris Lyons: No, it isn’t. Duty of candour could go you what our average shelf-life figures are in my some way towards helping change the culture within office, I can tell you. the NHS, but I don’t think it is the answer to these issues we have discussed this morning. Q350 Chair: Time is short. The next issue I want Carole Ayre: If I interview a clinician, with very rare to cover is tangentially relevant to that, which is the exceptions, I get a very straightforward response. I question of the extent to which there should be a duty may challenge what the clinician says. of candour on NHS operators when they are subject Nicola Wainwright: But it may be the patient didn’t to personal injury claims and, indeed, other get that straightforward response when they raised it. complaints. Do you believe that they should be subject Maybe what is needed is a culture change so that to a duty of candour and would that lead to patients who complain or are unhappy are not seen as recognition of liability quicker than some of the whinging and to be, if you like, fobbed off with current system, which sometimes is felt to be a system whatever information is possible, but, instead, there is that relies on the applicant having to prove their case an attitude that they should be taken seriously, dealt first? with sensitively and that their complaints can lead to Carole Ayre: They are subject to a duty of candour an improvement in care. That is where it may be pursuant to the GMC requirements in any event. I helpful, but without the culture change, even making suppose your question is: would a statutory duty of it a statutory duty may not make much difference. candour make any difference? Carole Ayre: I agree with that.
Q351 Chair: With the consequence that they would Q358 Valerie Vaz: What about the no-fault be subject to criticism if it could be shown that they compensation scheme? Scotland may be running some had not complied with it in a timely way. things. Is that something you have thought about or Carole Ayre: I have thought about that question and I have views on? am not too sure about it. When you ask a consultant Nicola Wainwright: My views are that, if combined whether he thinks he did anything wrong, he is not with a proper form of redress for a client, i.e. necessarily going to say yes, because he wouldn’t delivering to them what most of them really want, have done it if he thought he had done something an apology, accountability and explanation, it sounds wrong in the first place. ideal. But I think, financially, it is not possible to properly compensate absolutely everyone who can Q352 Chair: That is not the same thing, though, is show they suffered a medical injury. I don’t know it? We all can have second thoughts. much detail about the Scottish idea, but obviously Carole Ayre: No. What it— Scotland is a much smaller country and their volume Valerie Vaz: No, look at the Bristol hearts. and value of claims is lower. As to the figures, I Carole Ayre: Yes. understand the Chief Medical Officer here thought there would be an 80% increase in claims. The Q353 Valerie Vaz: Also, in judicial review you do Scottish proposal suggests there will be a 20% have a duty of candour, so if you front-load it at that increase, and it is on that basis they are suggesting stage, you are obliged to put out the facts. there will not be a significant increase in costs. I think Carole Ayre: It is very difficult do judge whether or in this country there would be a significant increase not, on a day-to-day basis, it would impact upon the and, not only that, people would be clinician’s approach. I don’t believe they go round undercompensated. trying to conceal things or not doing— Muiris Lyons: The National Patient Safety Agency’s latest figures suggest 1.3 million adverse incidents in Q354 Valerie Vaz: That is the point. If it is just an the NHS a year, and that is significantly accident you can deal with it and someone should be under-reported. When you set that against perhaps properly compensated—if it is an accident—rather 10,000 claims being brought, you can see the size of than drag it out and say, “No, no, no. I didn’t do it.” the potential problem. It sounds fantastic in theory, Carole Ayre: I am ambivalent about it. but you have problems about the scale of the exercise that would be involved, about whether everyone Q355 Chair: I am reluctant to believe that in this would get full and fair compensation or whether it imperfect world the thought never crosses the mind of would be some token-based tariff system. Then you the Litigation Authority, “Let them prove it.” have issues about how you establish cause. It is all Muiris Lyons: They are duty-bound to do that. They very well saying, “We accept responsibility for the don’t pay out unless— error,” but you have to go on and show what damage was caused as a result of that error. It is always the Q356 Chair: Hang on a second. Duty-bound to— most difficult part in clinical negligence cases and that Muiris Lyons: The burden of proof is on the claimant. doesn’t go away with a no-fault scheme. You have to advance a case and show you have got a Carole Ayre: The numbers in the Scottish example are case before they will admit liability. so small that I don’t think one could even start to rely on that as being applicable to this country. Claimants Q357 Chair: That is not the same thing at all as a would be significantly under-compensated if there was duty of candour, is it? such a scheme. While I have the floor, I agree that Desmond Hudson: No. legal aid should be retained for clinical negligence. cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
Health Committee: Evidence Ev 69
10 May 2011 Desmond Hudson, Muiris Lyons, Carole Ayre and Nicola Wainwright
Q359 Chair: Does anybody have any idea how— reiterate the point that all of my colleagues have said. even if the numbers are smaller, the percentages are One of the consequences of these sorts of schemes the same—80% in England is equivalent to 20% in is likely to be a significant undercompensating or a Scotland? significant change of current compensation levels for Desmond Hudson: I have not seen any rationalisation the individual who has been wronged. of those figures. My sense of the available work Valerie Vaz: We have got you here, but we are also suggests to me that we don’t know. It would, looking at the other side, and how the information therefore, in public policy terms, be a very courageous relating to this—the bad care that seems to be taking decision for a health Minister to say, “I’m going to place, apparently, or an increase of it—is fed back to introduce this.” I, personally, would not want to be the the different organisations and we think that may be health Minister going to tell the Treasury that. My another part of the jigsaw. It is not that we are looking sense is that there will be a very significant increase at you and attacking what you do. There are other in cost. aspects to it. Chair: You have just offered a piece of free legal Chair: Thank you very much. It has been an advice to a Minister. interesting and useful session. Desmond Hudson: I shall be in trouble for doing that when I get back. If I may, it really is important to
Examination of Witnesses
Witnesses: Rt Hon Simon Burns MP, Minister of State, Department of Health, and Chris Bostock, Head of User Experience, Department of Health, gave evidence.
Q360 Chair: Minister and Mr Bostock, you are both year, in April last year. A year’s evidence is not very welcome. You will, I am sure, be aware that we sufficient enough to be able to draw any conclusions have been doing an inquiry and carried out a number as to exactly where the strengths are or where any of evidence sessions on the way the NHS handles possible improvements may be needed. We are going complaints and litigation, and I know you sat in at the to have to wait a little time till we have some more back at the end of the evidence session we just had. evidence from how the system has been working I would like, if I may, to begin this session by taking under the new regime to be able to draw definitive us away from the litigation process and back to the answers as to whether it is working to the level at mainstream handling of complaints in the Health which we would expect a complaints system to Service. This has been the subject of quite a lot of operate. organisational change over the years. Can I start, Minister, by asking you what your assessment is, Q361 Chair: We are obviously going to move on to currently, of the effectiveness with which the NHS talk about the impact of all the current planned handles complaints? If a patient feels they have not changes in the Health Service on complaints handling, received the care that they should have received, do but the Committee feels it would be sensible, first, to you think the system handles that complaint understand where we start from in order to understand effectively and sensitively at the moment, or do you whether we have a problem to solve. Some of the think there are ways in which it could be improved evidence that we have heard would suggest the need and, if so, how? for improved performance is a little more urgent: there Mr Burns: First of all, thank you very much indeed for inviting me here today. I am the only person who is a sense, on the part of patients, when a complaint has both given evidence to the Health Select is handed in to an NHS provider that the first instinct Committee and spent five years taking evidence as a of the provider is to be defensive and explain why Member of the Health Select Committee. It is great to what happened was okay, that there isn’t a culture of be back—I think. immediately being self-inquiring and looking to see Chair: So far. why the patient might have concluded the care they Mr Burns: Chairman, you raise a very important had received was inadequate and that it is too difficult point. It is important that we have an effective, to find your way, as a patient, in what would be an efficient system of dealing with complaints by unfamiliar process, to where you should be if you are individual members of the public when they feel that going to have your complaint properly analysed and they have not had the service to which they are find an advocate for your case—if that is what is entitled. As you will be aware, the complaints system required to see the case progressed. Do you recognise was streamlined back in April 2009 when it went that description? from, in effect, a three-tier system to a two-tier Mr Burns: Yes. All of us, as constituency MPs, will system, getting rid of the Healthcare Commission. have some dealings with constituents—patients—who The anecdotal evidence—and I use that word for a have contacted us because they have a complaint specific reason—seems to be that the system is, by against their local hospital and, either through a lack and large, meeting the requirements of members of of knowledge or other reasons, have come to their the public and patients but I cannot give you a more MP rather than gone, first of all, to the complaints definitive answer at this point because, as you will be procedures. You get a flavour, from some of the letters aware, we gathered the information, after the first that one receives, as to what those individual patients cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock think. They also sometimes come to us if they are information get disseminated out to foundation trusts not satisfied. and various other places? Certainly from a constituency MP point of view, Mr Burns: No. What we are proposing— where there is an area for greater improvement is that Valerie Vaz: How do we learn the lessons? a lot of patients don’t realise, when they use the first Mr Burns: What we are proposing through the Health step, which is trying to resolve a complaint and a and Social Care Bill is a greater sharing of that problem locally, if they are not satisfied, that they can, information. The more information one has, the more of course, go to the Health Service Ombudsman. Too one can see what is going on across the board and the many, I suspect, are unaware, for a variety of reasons, more one can make changes that meet a situation. You of the fact that they do have that option. Also, again can gain information that helps you in the way in from being a constituency MP rather than a Minister, which you are going to take decisions. Also, it could, there can sometimes be frustration at the length of potentially, show where there may be particular time it might take to investigate and come to a problems. If you are getting a disproportionate amount conclusion on a complaint that has been made at a of complaints in one area or against one provider, that local level. Certainly there, there may well be grounds might, in certain circumstances, ring alarm bells for improvement, if there is sufficient evidence that is where closer investigation needs to be taken. not simply anecdotal evidence which has been given to individual MPs as part of their service but is a more Q364 Valerie Vaz: But we are pausing at the minute. widespread problem across the board. How is that information getting back now? What is the system now? Q362 Valerie Vaz: We heard evidence that a lot of Mr Burns: The system is not as extensive as we hope people do take that route, to go to the Ombudsman, it will be under the Bill. As you say, we are pausing. but she—or whoever it will be in the future—has a In addition, which is affected by the pause, we have very narrow term of reference. Therefore, she doesn’t had the consultation on the Information Revolution and can’t always investigate cases that people want to proposals. That was concluded in late January of this bring forward. We did hear in evidence that there is year. We have had, off the top of my head, about 750 this disparity of information as to where people can responses. We are considering those responses at the go. That seems to be an issue, and sometimes they moment and have decided that we will not be take six years to resolve complaints. Do you accept publishing the responses and our reaction to those responses during the listening process and the pause that something needs to be done about the whole because that would be inappropriate. We will seek to system? I think you mentioned yesterday, anyway, that publish it and the way that we believe we should go costs are rising in terms of complaints and litigation. forward after that has been concluded and we have Mr Burns: I certainly do in so far as it is important moved on. that the Health Service is responsive to the concerns and the dissatisfaction that patients may have with the Q365 Chair: I had promised the floor to David, but service, or the lack of service they perceive they have you said it would be inappropriate to publish and I received, or if mistakes have been made, or whatever. wondered why. It has to be responsive. Of course, it should be Mr Burns: It is because we are in a listening mode responsive in a way that is relevant, gets to the bottom and in a pause. Of course, the listening mode is about of the problem and comes up with the right answers, all our proposals flowing from the White Paper and and that it is done in a reasonable timescale because we do not want to be seen, because it is a genuine that can become extremely frustrating for the listening exercise, coming to any conclusions and complainant. decisions beforehand. Also, because information is I also think it is right to have a two-tier system, as part of the modernisation of the NHS, at this stage, brought in in April 2009, rather than a three-tier during that listening mode, it is wiser to postpone system. Again, with the Ombudsman—they had just publication till afterwards. People may be—and under 16,000 complaints for the last year that figures certainly, reading the papers, you would anticipate that were available—I accept that they too, most people are going to be—focusing on other areas notwithstanding the workload, need to be swifter in of the modernisation programme in their responses, the way in which they resolve conflicts or complaints. but there may well be responses from people about I confess I have not seen the example that you give information and how you empower patients. If we of a six-year time scale and I don’t know the were to publish our responses during that process, background to that. If that is the case, it would seem, people might say we are not listening in the way that on the face of it, to be an inordinate amount of time we are and that we are pre-judging things. to reach a conclusion on someone’s complaint. From the figures I have seen, the average time is about a Q366 David Tredinnick: Minister, I want to take you year, which also seems quite a long period of time, back, if I may, to look at the problems of the Mid particularly if you are the person who has made the Staffordshire NHS Trust, which seems a pretty good complaint. example of all the things that can go wrong. How good do you think the current system is at identifying Q363 Valerie Vaz: What happens to all that systemic failures in providers, please? information, in terms of the cases that have come up Mr Burns: Mr Tredinnick, I don’t want to be and the types of complaints that have been made in unhelpful, but I would like to explain and I hope you relation to the service in the NHS? Does that will bear with me. What happened at Mid cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock
Staffordshire, as we all know and agree, was in place, transferring that responsibility to those absolutely dreadful and unacceptable. As you are organisations, is the right way forward within the aware, the first Francis Inquiry, and the report that whole ethos of the modernisation programme, which was published following that, identified inadequacies is to localise the day-to-day running of the National around complaints handling, notably a concentration Health Service rather than the micro on process rather than substance. and a lack of timely management-from-Whitehall system that we have in remedial action. That was looking at what went wrong place—or we had in place. and the report was published with recommendations. David Tredinnick: Through you, Chair, I am sure Following the Secretary of State’s setting up the colleagues will want to come in on this because I am second Francis Inquiry last year, currently it is looking not sure that I am absolutely clear, or that the at how and why things went wrong. Clearly, an Committee is clear— important part of that is to do with complaints, Chair: A number of them do wish to come in. whistleblowing, the way that staff were treated and David Tredinnick:—about whether all this is going the climate within the hospital. Given that that Inquiry to be sucked up or whether it is in fact going to be is still sitting, it would not be the right thing for me, dealt with at a local level. I rest. as a Minister, to start trying to second-guess or pontificate on what may or may not have been the Q369 Rosie Cooper: Minister, you spoke at length, problem. We should wait until Francis publishes his a couple of minutes ago, about much more report, which is hopefully going to be later this year. information being available for patients and the system generally. But I have to say that the evidence Q367 David Tredinnick: I understand that and you we have received so far would be at odds with that in have already alluded to some of the changes that have the sense that FT representatives were very clear that been made—the simplification in the complaints they are not required to send information in about structure. But I would like to talk about what complaints, and they don’t, and they are unwilling to individuals and families have said to us as a do that. I have struggled to find out how much FT Committee, either orally or in written evidence. They chairmen individually are paid. If you can’t get that have said that, after a serious adverse event like that, kind of information out of the system, then I don’t it is often a very long journey, going through endless understand, Minister, how you can be so sure that that different procedures through the NHS complaints information will be there in its entirety, especially system. What do you think needs to be done to ensure about complaints, which will enable patients and that adverse health care events will not be practitioners to make their choices properly. It is okay compounded by poor complaint handling in the NHS, if an NHS non-foundation trust is actually declaring notwithstanding the fact that you are in a consultation its complaints and what is going on there whereby period and that there are pauses and inquiries? Could they are reputationally better because it is hiding and you open up a little and give us a view? not telling anyone what is really going on in their Mr Burns: Notwithstanding that I am not talking in hospital, because their figures and their information the context of Mid Staffordshire and what may be are not being made available to the public, and their going on in the Francis Inquiry at the moment, the board meetings and board papers are secret. crucial things are as follows: you have an effective Mr Burns: I anticipated that you would be raising the complaints system that people have confidence in and issue of FTs because it would certainly seem to you, that looks at things swiftly to reach resolution; that from the way you phrased your question, it is an you have a culture and an atmosphere within a anomaly that FTs do not have this compulsion in the hospital where people working there feel confident way that a non-FT trust does. That was created when that they are able to raise any concerns without fear FTs were established under the last Government, that they might adversely affect their employment partly as part of the ethos that they— prospects or their position within that organisation; and that the decisions taken judging the complaints Q370 Rosie Cooper: Minister, I am not really are as relevant, as accurate and as fair as possible. bothered about the history of it. Obviously, if an individual still has concerns and feels Mr Burns: No. I thought that. that the complaints procedure has not dealt fairly or adequately with their complaint, they will have the Q371 Rosie Cooper: The real problem for me is that option to go to the Health Service Ombudsman. this is the future. You are staking the benefits of the Health and Social Care Bill to people about choice Q368 David Tredinnick: The last point is, under the and information. My question to you, with the current proposals in the Health Bill—paused, as it situation as I have described and what is happening were—the NHS Commissioning Board will provide today, is: what are you going to do to change it? an alternative to GPs and primary care trusts taking Mr Burns: I was starting by putting in the context of forward complaints. Do you think that a centralised how we got to where we are at the moment, which body can act effectively for complaints at GP level, was part of the ethos, that FTs were independent please? bodies, and that was one of the situations that flowed. Mr Burns: It depends on the commissioning body as I am going to ask my colleague, Mr Bostock, to tell to who exactly is going to be responsible. In some you more about the background to that, where we are cases it will be the National Commissioning Board now and where we might be. and in some cases it will be the GP consortia Chris Bostock: Thank you, Minister. There is themselves. I think the system that is going to be put absolutely no doubt, as you say, that 18 trusts out of cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock
128 foundation trusts, about 14%, didn’t provide the Q375 Rosie Cooper: That is a frightening flaw in the central data returns. I think, as when I last appeared, heart of the arguments you use in promoting the new there is an issue over the effectiveness of those data Bill. For example, David has talked to you about Mid returns in the sense that it is quantitative data in terms Staffordshire. The truth is that Mid Staffordshire is an of the number of complaints received. In going FT and Mid Staffordshire did not make that forward, working closely with the Health Service information openly available, did it, in number of Ombudsman and other stakeholders, the Department complaints? of Health has been looking at driving improvement Mr Burns: Yes, but the point that I think Mr and learning from NHS complaints information. I Tredinnick raised, with justification, was about the understand, Chairman, that the Ombudsman sent you complaints procedures and what was going on at Mid a copy of the signed protocol between these Staffordshire. As I said in answer to him, we have an organisations in which it is openly accepted by all the inquiry at the moment that is, among other things, signatory organisations, which includes the looking at that point. It is a little premature at the Department of Health, the Chief Executive of the moment, until that inquiry reports, to find out exactly NHS and, indeed, Monitor, that there is a clear need, what the problem was there, how it happened and as we move into the future, for meaningful what Francis recommends as a way of rectifying that. comparable complaints information; in other words, information that is far more detailed than the Q376 Rosie Cooper: Forgive me, Minister, I was information that is currently collected centrally. These extrapolating that. If you are basing the Health and systems don’t capture what we do need. Each Social Care Bill’s great power in localism, I am organisation has to play its part. suggesting that, without information, that localism is not of very much use to you because you don’t know Q372 Rosie Cooper: I see you reading that. The real what is going on. I am using the example of Mid big question for me is: this is your Bill. You are Staffordshire as an FT, i.e. board, governors, all of it, staking a core of it on the fact that it is more local, it was handled locally, and that failed dramatically. is more freedom, it is more this, it is more that, it is What I am saying is if it failed there— more information, and yet there doesn’t appear to be Chris Bostock: I am sorry, but my understanding— anything built into the Bill to ensure that that happens, and I may be incorrect in this—is that initially, at the that FTs do declare that all that information is made time that the Mid Staffordshire incidents arose, it was available on a comparable basis. If that is a main tenet not an FT and this information was not going through. of the Bill, why are we working away in the middle? It was an internal issue to some degree in the sense Why are we not saying that this will happen, that the that the board was taking no responsibility for information from all hospitals will be made available monitoring the complaints information to get those to people, be it patients or practitioners, and they can improvements. have information on an equal level? Rosie Cooper: Okay. Chris Bostock: That is something we have to Mr Burns: The point on Mid Staffordshire is that it is consider. Currently on the NHS Choices website, for very difficult at the moment, because of the sensitive position that we are all in with the Inquiry that is example, the statistical returns of those— going on. What we will know as a result of the work that the Inquiry is carrying out at the moment, which Q373 Rosie Cooper: No. We have had FT people is comprehensive and in-depth, is that Francis will here saying that they don’t make that information produce a report in due course where he will tell us available and they have no intention of making it what he believes happened as a result of everything available. that is being carried out. No doubt, he will come out Chris Bostock: If I may, that is quite right with regard with recommendations and we will have to wait until to the KO41. There is a true disagreement as to how that happens to see what he has discovered and what effective that information is. What I am arguing is that he recommends before moving forward in respect to we need to look to the future. We need to shift the Mid Staffordshire. situation with more meaningful data. Q377 Rosie Cooper: I have one final question, Q374 Rosie Cooper: Minister, are you prepared to Minister. If you are not going to require FTs to make put that in the Bill? Are you prepared to say that in available much more of the information, how will your Bill—actually find some part of it, in your people locally be able to make the judgments you amendments to come, which will assure the great think they will be able to—choosing their hospitals British public that they, as the funders of this service, and their practitioners? How will they do that if all will be able to take out of it information equally, no the information is not available to them? matter who the provider is? Mr Burns: For the very reasons that my colleague Mr Burns: The answer, as of now, is no. We are in a was telling you a moment ago, which he can reiterate listening process. We have still to formulate and if you would find it helpful. publish our response to the Information Revolution Chris Bostock: Yes. There is an acknowledgment and how we are going to provide information both to amongst all major stakeholders, which includes patients and the NHS and, as my colleague has been Monitor, that these data are required in order to drive saying, at the moment we do not have an intention to forward the Choice agenda and other agendas within change the system with regard to FTs that we have at the modernisation. We have a statement of principles the moment. from major stakeholders. What we now need to do is cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock work with these stakeholders to put it into effect and Chris Bostock: One of the principles behind the 2009 make it a reality, so that this information does become complaints reforms was that complainants would have available with regard to complaints information. the ability to complain either to the provider of the The point I made when I was last here also is, for service or to the commissioner of the service, it being whatever reason—and let us not go into it—only important for two reasons. First, anecdotal evidence something like 7% of people, according to the NAO and otherwise suggests that, particularly in primary “Feeding back?” 2008 report, who are dissatisfied care, some people are afraid to make a complaint, with some of their services, made complaints to the particularly in rural areas, because they fear being NHS. It is important as well to pick up on other struck off unreasonably and so on. That, if you patient experience data, the concerns, the results of remember, was one of the recommendations in the the surveys and so on and so forth. Complaints are Shipman fifth report. important because once someone makes a complaint The second is that there are occasions, particularly they feel driven to do so. But we need to take into with complex or sensitive cases, where someone account the whole of the patient experience when we wishing to make a complaint may feel that it is are looking at data that is of use to individual service appropriate to go to an organisation slightly more users. distant than the organisation that provided the service. Chair: May we move on from that, but possibly with That, therefore, means that, at the moment, the choice the concluding thought that—and, Minister, we is to go to the GP practice, the NHS trust, or, understand you are in a listening exercise and you alternatively, to the commissioner of that service. As can’t make new commitments on behalf of the the Minister has described, in the new framework, if Government and so forth—the Government might that principle holds, some complaints will go to the reflect on the wisdom of taking the new protocol of GP consortium commissioning the care, if it is in the information that is required, not the old one which is secondary sector, or, if it is in the primary sector, the acknowledged not fit for purpose, and consider how complaint will go to the NHS Commissioning Board. the commitment can be made that that information The principle remains the same, but instead of a single will be available from all providers of health care to set of organisations commissioning, there are two NHS patients. Ms Cooper’s question is: if it is right commissioning bodies. for some, it should be right for all. There needs to be some confidence that the information will be Q380 Andrew George: That will be the patient’s forthcoming in accordance with that protocol, if I may decision as to where they feel most comfortable taking crystallise what I think are probably the views of the their complaint. Committee. Chris Bostock: Indeed, yes. Q378 Andrew George: I was going to be a good boy, Q381 Grahame Morris: Can I take the Minister as I arrived late, and not say anything, but I was back to his earlier response to a question from David provoked and left rather baffled, after David Tredinnick asked his question, about how, under the Tredinnick about the Information Revolution, and can Government’s plans, a complaint about a GP would we consider it in the context of the inquiry that we are be handled in future. Your response, Minister, was that doing now on complaints and litigation and the thrust you wanted to distance yourself from an approach of the White Paper, “Liberating the NHS” and which meant that Whitehall would be micro managing patients’ “No decision about me without me”? Given local issues which needed to be resolved locally. But that we are in this kind of reflection mode, when we you said that some would be handled by GP consortia. are pausing to think about where we are and what the I would like to know how complaints about a GP implications of the Bill are and given that the would be handled because, as I say, I was left rather consultation that we have had around the information baffled by that response. strategy didn’t really address the issue of complaints Mr Burns: I may be responsible for the confusion. I data, is it not reasonable now to reflect on that and thought the question was about who will manage the think that it should? process of complaints following the abolition of PCTs. Mr Burns: No— Andrew George: That is right, yes. Grahame Morris: Such that a patient can make an informed choice about whether these issues will affect Q379 David Tredinnick: Also, if you will excuse me their choice of which provider they would go to. for butting in, the key issue was that it is policy it Mr Burns:—because, if you look at the document that should go up to the Commissioning Board; the flowed from the White Paper on information, it was Commissioning Board should have much more say. fairly comprehensive. What we are looking for, as you My question was: what happens to the people who will know, Mr Morris, from our discussions in the Bill would normally complain to GPs or to the primary Committee, is empowering patients through providing care trusts, which are going to be abolished in 2013 them and others with information across the board that anyway? There appears to be a gap. I was slightly is comprehensive, that is easily understood and is surprised when you said, “Don’t worry, it is the impartial so that it can be accurate and enjoy the Commissioning Boards who are going to deal with confidence of those looking for it. That will be across this,” because this certainly wasn’t the impression I the range of health care, whether it is about someone’s got. local hospital, MRSA rates, cleanliness rates, quality Mr Burns: No, there will not be a gap. Do you want of food or the standards of the quality of care. Also, to give the minutiae? there is nothing to stop it from including the cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock performance of consultants and others in the local commissioning and bring things down to a local hospital, etcetera. level—and local authorities are far more familiar with what is going on on the ground within their areas— Q382 Grahame Morris: Minister, I don’t mean to interrupt, and I appreciate that answer. On reflection— Q385 Grahame Morris: If you will forgive me for because we are not being a little contrite but we are interrupting, Minister, what we are looking for as well having an opportunity to think about the general is to address this issue that the Ombudsman has direction of travel—when the consultation was identified in the patchy ICAS provision, the postcode published, it didn’t mention complaints information. lottery where in some areas it is very good and some Mr Burns: No. areas it is very poor. Can you tell us what the role of HealthWatch England would be in coordinating a Q383 Grahame Morris: Given that that is a key consistent approach to how complaints are dealt with? piece of information that would influence patient Mr Burns: If you are talking about a patchy choice, do you think that it should have? provision— Mr Burns: No, I don’t. The complaints procedures Grahame Morris: This is what the Ombudsman says. are dealt with through the measures introduced in Mr Burns: Let me finish the sentence.—and you have April 2009 and if one feels that there are failings or identified this as a criticism from the Ombudsman, to there are improvements that can be made to the way my mind a way of rectifying that, if it is a justified in which complaints operate at present, then that is the criticism—and I am not saying it is not—is for local right area in which to look to seek to improve and authorities, who have a democratic accountability to amend, if necessary, not through this. The focus of the the local area, to correct that problem. They are best Information Revolution is to provide more placed to do that because they do have democratic information across the board so that people can see accountability. They have to be responsive to the what is going on within the NHS and within health needs of local communities in a way that the care in England. Department of Health, stuck here in Whitehall, doesn’t. Q384 Grahame Morris: Before I leave that, one of the issues that has come out of our inquiry is the Q386 Grahame Morris: Minister, could you share problems that arise leading to complaints and your thoughts with us? Is it in your mind that it is the litigation where NHS trusts or providers fail to intention of the Department to issue guidance through acknowledge there is a problem or an issue. I am HealthWatch England about what a model approach tempted to draw a parallel between your last answer would be to handling complaints for the 150 local and that situation, but I am going to move on. authorities who are going to be responsible, or will I would like to ask you about the implications of the you just let it evolve in each local area? In my view, new health reform package, the new structures in the that would encourage a variety of different Bill, which have been touched on a little before. Your arrangements and a patchy distribution of good and colleague Mr Bostock had mentioned previously that bad. the Ombudsman has given evidence to the Committee Chris Bostock: HealthWatch England will have the identifying, in particular, the patchy nature of the power—again, subject to parliamentary approval and complaints advocacy service, ICAS. What is your the listening exercise—to provide advice to English assessment of the fragmentation of commissioning units? Previously we only had one, didn’t we? We had local authorities. Within that context, were there seen the Department of Health. Now we are going to to be problems in a given area, we would expect have—we don’t know the final number of HealthWatch England perhaps to notify an individual commissioning units—quite a considerable number local authority of those problems. Of course, local and we are going to have a plethora of different authorities, in a sense, are not subject to direction providers. What is your view on how that will impact from the centre, either within the Department of on the complaints handling procedures? Health or, indeed, from HealthWatch England within Mr Burns: As you have rightly said, it is CQC, but, as a general principle, there is this ability commissioned at the moment centrally from the to offer advice and provide information and the Department of Health— English local authority would then have to respond Grahame Morris: Which is quite simple and accordingly. straightforward. Grahame Morris: It does seem a bit vague, but I am Mr Burns: Yes. There are nine streams from that. grateful for the opportunity to raise the issue. Thank What we anticipate—and, of course, it is subject to you. parliamentary approval—is that, from 2013, Chair: We are having some difficulty with the responsibility for commissioning complaints advocacy loudspeaker service so could I ask you to speak up? services will transfer to local authorities. It could, as Down this end of the room, it is not always crystal the Bill currently envisages, take three possible clear. mechanisms. It could be commissioned directly from a third party, it could be commissioned from a third Q387 Rosie Cooper: The Minister described local party but insisting that the provider operates within authorities generating the complaints system. What local HealthWatch or it could be placed within local real powers would they have over the NHS to ensure HealthWatch if that is the option they think right. That that it carried out and took cognisance of whatever is the right way forward because the more you use decision they came to? cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock
Mr Burns: I am sorry, I said local authorities would strengthened so that if a promise has been given to be the commissioning agents for independent undertake a certain action then a follow-up letter goes advocacy services. out or, at minimum, it is accepted that the complainant may subsequently write, three to six months later, and Q388 Rosie Cooper: We then have the independent say, “I am just checking on how you followed up from advocacy arrangements. In this Bill what “duty” do this,” and expect a reply. It is a fair question. NHS organisations have to make reparations or take cognisance of the outcomes? What I am getting to is Q389 Rosie Cooper: Absolutely, although the this. It is very difficult in that, when a complaint is patients who have appeared before us are horrified made, we will have a body that advocates for the that they get to a point where they think system complainant and then we will come to perhaps a changes will be made, they don’t happen and there is decision that something should be implemented or no check. While you don’t want to create an industry, not—perhaps even an action plan. Yet people come as to those people who are sending out that letter, if it here and give evidence—patients have given is your hospital, I can’t even begin to understand why evidence—saying that they have reached what appears you would not want to implement changes for the to be an agreed decision and the action plans are never better. followed up. They are just a staging post. You have a Chair: It ought to be part of the job of the tick box but no real action. No real change follows commissioner to make certain that it happens. those decisions. What power is behind that to make Mr Burns: Absolutely. That is a very valid point and sure the NHS organisations do what is required? we will await your report. Mr Burns: The purpose, as you know, Ms Cooper, is that the independent advocates are there to help Q390 Chair: Can I ask you about a different someone, whether it be in filling in forms, pointing question? We have what is now, as you have described them in the right direction or helping them with the it, a two-tier system for handling complaints and it is progression of their complaint. That will continue the same system whether you are complaining about whether it was being commissioned currently through a life-threatening failure of clinical management or the Department of Health to provide a service somewhere food being cold served on the ward. I wonder whether or through the local authorities. Similarly, there are you think that it is sensible for those two types of going to be local HealthWatches under the legislation complaint to go through the same process. who will be there to be able to give advice and Mr Burns: Off the top of my head, yes. signpost patients to the relevant areas to help them pursue their complaints. Therefore, there is a Q391 Chair: Or would you like to write to us? two-pronged way in which patients will be helped to Mr Burns: I would be more than happy to write to progress their complaints against an organisation. you because one could say yes, in principle, but I fully The second part of your question, if I understood it take on board the rather practical point you are correctly, was: what happens when a decision is taken making: whether it would be more effective, efficient on the completion of the investigation of the and sensible to have a two-channel system or where complaint and nothing is done? I think that is correct, serious clinical and medical decision complaints are is it not? treated in one tier and the example you give of food Rosie Cooper: Yes. and things that are important to people—but, in the Mr Burns: I will ask Mr Bostock to fill you in on the run of things, may not be considered as critical as details of that. where there has been a significant failure in care—in Chris Bostock: The separation that the Minister the same tier so that it clogs up the whole system described is perfectly correct. The advocacy service is rather than prioritising them in different channels. If there to support and to enable people to use the you would allow us to write, I would deeply complaints arrangements. Within its current role, they appreciate that because it would give us an don’t actually act as an advocate in the sense of, for opportunity to reflect more. example, a barrister. They act as a support to allow Chair: We always welcome your “off the top of the people to make their own decisions and to assist them, head” answers but possibly the written answer might when they have made those decisions, to take them be more useful. forward. I think that is a separate issue with regard to the action plan. I certainly realised that there was Q392 Valerie Vaz: I was going to lead you on to evidence—it may have been in the 26 April evidence legal aid and litigation. I wonder what your views are sessions—where there was an issue around ICAS on in terms of the consequences of the removal of legal behalf of complainants having seen an action plan that aid for clinical negligence cases and, also, this was subsequently not enacted. expansion of conditional fee agreements. We heard At the moment, in the response to a complaint, the evidence earlier that insurance companies are going organisation concerned has to explain what action, if to be laughing all the way to the bank if legal aid any, is to be taken as a result of that complaint—what is removed. will be done to improve services as a result of that. I Mr Burns: As you are aware, this is being led by the fully understand the point being made, that that does Ministry of Justice. Again, as you know, they have leave a gap in the sense that it is easy to write a letter recently consulted on their proposals on reforms to which is then subsequently forgotten. Subject to legal aid, which did include a proposal to remove further consideration, we need to look at whether or clinical negligence from scope. We are all awaiting not this aspect of the regulations might be the Government’s response to that consultation and cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock the information and the views that were fed into them Mr Burns: I may well have an opinion on the subject on these proposals. In that respect, it is premature to but there are times, within the way in which give a view and we will have to await the Government works in which discussions on responses Government’s response. to consultation documents operate, where Ministers are not, at that point, at liberty to go too widely to Q393 Valerie Vaz: I think you want to come back to explain what is being discussed. this Committee because there are lots of things that we are waiting for. We look forward to having the Q396 Andrew George: I understand and accept that, Minister back at some stage. but can you confirm that your Department has Mr Burns: Nothing would give me greater pleasure communicated to the Ministry of Justice, first of all, if— your opinion and that you have undertaken some form Valerie Vaz: It is so lovely to see you in any forum. of impact assessment which has also been Mr Burns: You are too kind. Nothing would give me communicated to the Ministry of Justice in this greater pleasure. I am not familiar with the time scale regard? of you wishing to conclude your proceedings and Mr Burns: Yes. That won’t get me into trouble. I can publish a report, but, if you can wait, nothing would tell you and I think you would expect the answer to give me more pleasure. be yes. Andrew George: I just wanted to be assured that Q394 Valerie Vaz: I am merely asking your view, you had. Minister. But, following up on that, the NHS Redress Mr Burns: The NHS Litigation Authority has been in Act was also something that was mentioned by Lord close discussions with the Ministry of Justice on this whole area and in due course the Government will Justice Jackson. Do you have any views on that and publish its responses. You can rest assured, if that is any plans to bring it forward or bring it into effect? the narrow question you are asking, rather than the Mr Burns: No. We don’t have any immediate plans content of it— to bring the 2006 Act into force or effect for the Andrew George: The Department— reasons I think you have been given. There is now a Mr Burns: The Department through the NHSLA— slightly changed situation on the table because, of Andrew George: Not the Litigation Authority, the course, Lord Young of Graffham, last October, Department. published his recommendations and one of our Mr Burns: We have been doing it, primarily, through colleagues, Mr Chope, has a Bill which is up for the NHS Litigation Authority because we regard that potential hearing—Second Reading—on 9 September, as the relevant body within the umbrella of the NHS which would, in effect, if it were to be successful, as to hold the discussions on our behalf. Yes, I understand it, implement the Lord Young proposals. categorically you can rest assured there have been and I can tell you that we are looking at that to see if it will continue to be ongoing discussions between us ticks all the boxes and if it is relevant. We will, in due and the Ministry of Justice. course, reach a view as to whether the Chris Chope Bill is a relevant vehicle for implementing the changes Q397 Dr Wollaston: Minister, could I take you back that we believe are needed. a bit? Given that we have heard in this Committee that the proposed changes to legal aid will effectively Q395 Andrew George: I want to come back to the remove recourse to justice to a very wide number of first question about the removal of legal aid support people, that is going to make it even more important for clinical negligence cases and your answer was that that we tighten up the arrangements within the you are awaiting the Government’s response. Of complaints mechanism for people to have what they course, you are part of Government and, no doubt, the say they really want, which is a proper apology. What Department will have communicated the action is the Government taking on its pledge that Department’s views about the potential impact of hospitals will have a duty of candour to be open and those changes on the NHS. I would like to know a honest when things go wrong? We have heard little more about what the Department has done to consistent evidence that, despite reassurances that communicate to the Ministry of Justice about what the apologies don’t constitute an admission of liability, likely impacts of this change would be on the NHS NHS organisations are still failing to offer and the information that you glean from your service unconditional apologies or to be open and honest. if medical negligence cases are potentially not taken Mr Burns: I totally agree with you. Where it has been up. established, when due process has taken place and it Mr Burns: You may be tempting me to go beyond is quite clear that something has gone wrong or is where I am at liberty to speak at the moment, given unacceptable, a mistake has happened or, more that there are still intergovernmental discussions going seriously, things have happened that should never on preparing the response to those consultations. To have happened, then I do believe that the relevant save myself from myself, I will ask Mr Bostock to body responsible for this should apologise—a answer your question for the simple reason that he genuine apology. will not possibly stray too widely in a way that, as a Minister, I shouldn’t because we are still discussing Q398 Dr Wollaston: Yes. I think we all agree with with the Ministry of Justice. that but how are we going to make it happen? Andrew George: But you must have an opinion on Mr Burns: Certainly, as a Department, we have been this— making it quite clear to providers and others that, as cobber Pack: U PL: COE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock part of the processes, they should apologise when authorities can manage local priorities and that they there has been an established failing or mistake on are best placed to respond to their local communities. their part and that something should be done so that, Therefore, local HealthWatch will remain within local where relevant, it shouldn’t merely be words. authority funding mechanisms through the formula-based grant and it will not be ring-fenced. Q399 Dr Wollaston: That is part of the problem with publishing the raw complaints data, that it can act as Q403 Rosie Cooper: How will you ensure the level a disincentive for people to publish it. Going back to of standards, making sure that that which is offered a point that you made earlier about the results of the throughout the country is reasonably broadly similar? consultation exercise regarding the IT revolution, I Mr Burns: As to the quality of each local understand the point you made about not making it HealthWatch, that will be partly determined through generally public at the moment, but would, say, the national HealthWatch who will obviously be Professor Steve Field have access to that data as part keeping an eye on the local HealthWatches. Also, of his listening exercise so that that can be taken within the local health economy, people will be forward? looking to make sure that they are responding to the Mr Burns: To be quite frank, I don’t know, but I will levels and the standards expected, both through the certainly find out and get back to the Committee as local authorities and, I think, the Health and soon as possible. I genuinely do not know. I don’t Well-being Boards, which may well have a view if it know whether he has asked to see it or whether, if he asked, he would be able to see it. I am not quite sure was felt that local— why he could not have the information shared with Rosie Cooper: But no power. him at this stage, but I will categorically find out and Mr Burns: Let me come to the end bit.—HealthWatch let you know. was not operating, as well as pressure from members Chair: Do we have any other questions? of the public—if they felt that they were being failed—and ultimately if there were a significant Q400 Rosie Cooper: Could I take you back to local problem with a local HealthWatch and it was not and national HealthWatch, please? Could you explain meeting the required standards or fulfilling its to us what resources will be available to it and the functions to the level and quality expected, there is a mechanism for funding it? provision in the Health and Social Care Bill that a Mr Burns: Yes. It will be funded through NHS local authority and HealthWatch England can make a funding via local authorities. joint application to the Secretary of State to have that local HealthWatch disbanded and start again. That is Q401 Rosie Cooper: Local authorities will not be the ultimate sanction where one has a failing local expected to pay for local HealthWatch out of their HealthWatch. budgets. From the Minister’s comment, you will be making available an extra sum. How will it work? As Q404 Rosie Cooper: It comes back to national to national HealthWatch, will they be given an HealthWatch, its resources and the amount of money amount? What kind of resources will there be? How they have at their disposal. In other words, if the CQC big do you see it? Is it comparable to the is not properly resourced, then the level of service— Ombudsman’s office? What is the scale of this? the amount of time they can spend scrutinising those Chris Bostock: The honest answer is that it is functions—will, of course, be limited. contained in the impact assessment that was published Mr Burns: On the logic behind your question, yes, in support of the Bill. We can certainly provide that but I wouldn’t accept the premise of your question. information, with regard to the CQC and the amount going into HealthWatch. It would be unreasonable for Q405 Rosie Cooper: But we don’t know what me to give a figure as I seem to remember it rather resources they are going to get. than give an accurate figure. With regard to local Mr Burns: The premise of your question was “If CQC HealthWatch, again there is the funding that currently is not properly funded,” and I— goes into the local involvement networks, the LINks. Rosie Cooper: It national HealthWatch is not LINks will be evolving in the sense that they will properly funded. become a part of a wider role within local Mr Burns: Yes, through CQC—it flows through—and HealthWatch. The funding from LINks already within local authorities will remain, but there will be I am confident that it will be. additional funding which will pick up on the Chair: I think that more or less covers the ground. information, the signposting roles which local HealthWatch will undertake which the LINks Q406 Valerie Vaz: I have a quick question on the organisations do not. “no fault” compensation schemes. Do you have a view on those? There is one proposed in Scotland. Q402 Rosie Cooper: In the current strapped Chair: Are you following where Mr Salmond leads? circumstances, will that funding be ring-fenced or Chris Bostock: As you may know, when Sir Liam could you have a varying level of service from Donaldson, in 2003, started “Making amends,” from different authorities depending on how much money which flowed the NHS Redress Act, the Department they are prepared to put into it? of Health considered “no fault” within that context Mr Burns: No, it won’t be ring-fenced because the and, at the time, felt—if I heard correctly from the Government believes it is important that local earlier session—there is a potential of it pushing up cobber Pack: U PL: COE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG04 Source: /MILES/PKU/INPUT/011252/011252_o004_kathy_HC 786-iv - 10.05 to TSO.xml
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10 May 2011 Rt Hon Simon Burns MP and Chris Bostock costs and so on and so forth. As the Minister has Q408 Valerie Vaz: But what are you basing that on? explained, the Government is currently exploring the Chris Bostock: Arguably more claims would fall introduction of low-value personal injury claim within the scheme because you would not need to schemes to address speedy resolution and costs as a prove negligence in order for those— possible alternative to changing to the “no fault” system with regard to clinical negligence. Q409 Chris Skidmore: Why is there such a Mr Burns: Of course, that is slightly wrapped up discrepancy in the Scottish report as opposed to what because it flows from Lord Young’s review of last Liam Donaldson published? In Scotland they are autumn and depends on exactly what Chris Chope has saying there will be a 20% increase in claims, while in his Bill because, as you will appreciate, at the Liam Donaldson said, back in 2003, that it would be moment, he has not published a Bill, although it is an 80% increase in claims. I wondered if there was going to be based on Lord Young’s review and something radically different about Scotland and proposals. England that would lead to such a discrepancy. You may have your own view yourself but what do you Q407 Valerie Vaz: But in your memorandum the reckon the level of increase might be? Department of Health said that they had weighed up Chris Bostock: At the moment—and again perhaps the risks of it and the costs. I wondered on what you we can write with regard to that—the Department is based that evidence. keeping a close eye on Scotland but, subject to the Chris Bostock: Do you mean with regard to “no outcome of keeping that close eye on development, fault” specifically? there appears to be no reason to shift the position with Valerie Vaz: Yes. regard to England. Chris Bostock: It is a balance with “no fault”. There Chair: Thank you very much. We shall weigh your are arguably advantages in terms of speedier words, look forward to your letters and you will look resolution and lower administrative and legal costs but forward to our report. there are also downsides in that the overall costs may Mr Burns: I think we owe you two, if my memory is be expected to be higher than the current tort system right. We will get them to you as quickly as possible. because— Chair: Thank you. cobber Pack: U PL: CWE1 [SO] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Written evidence
Written evidence from the Department of Health (CAL 01) Part 1—Complaints Summary — The NHS complaints procedure is the statutorily based mechanism for dealing with complaints about NHS care and treatment. — New arrangements came into force in April 2009, which seek to deliver more accessible and responsive complaints arrangements, and to provide better quality feedback to support organisational learning and commissioning decisions. — A meaningful assessment of the new arrangements is not yet viable; current data cover only the first year of operation.
Background 1. Prior to April 2009, there were two separate processes for handling complaints about health and adult social care services. These processes had a different number of stages and timescales, and investigations were carried out in different ways for each service. 2. The NHS Complaints Procedure was broadly the same across all NHS services. Complaints could be made about any matters connected with the provision of NHS services. The stages were Local Resolution, Healthcare Commission, and Health Service Ombudsman. In adult social care, a person was eligible to make a complaint where the local authority had a power or a duty to provide, or to secure, the provision of a service. The stages were Local resolution, Investigation, Review panel, and Local Government Ombudsman. 3. The Health Service Ombudsman, in her 2005 report Making things better? A Report on Reform of the NHS Complaints Procedure in England, identified key weaknesses in the system and approach, including: — it was not centred on the patient’s needs; there was a lack of capacity and competence among staff to deliver a quality service; — the right leadership, culture and governance were not in place; and — just remedies were not being secured for justified complaints. 4. In June 2007, the Department of Health therefore produced Making Experiences Count, which set out proposals for a new approach to complaints management across health and adult social care; a single set of arrangements making it easier to access and navigate by people using both health and adult social care services. The new arrangements were introduced in April 2009. 5. The fundamental objectives were to: — facilitate effective handling of complaints at the local level (a vitally important element of an effective complaints process is that organisations should routinely learn from complaints, feeding into service improvement; — encourage organisational learning leading to service improvements (complaints being a valuable source of feedback on service delivery, particularly if linked to risk management and wider governance processes); and — make the experience of making a complaint easier, more user-friendly, co-operative and much more responsive to people’s needs. 6. If the handling of complaints at a local level is robust, effective, comprehensive and proportionate, no purpose is served by having intermediary stages between local resolution and the Ombudsman. The reformed framework was, therefore, reduced to a two-tier process: Local resolution, and Health Service Ombudsman. Having access to the Health Service Ombudsman also ensures independence, where required. 7. Providers should take complaints seriously and their Boards (or equivalents within organisations) need to understand both the benefit of dealing with complaints effectively and the consequences if they do not.
Issues The reasons for the recent sharp rise in NHS complaints 8. One of the drivers behind the 2009 complaints reforms was to make the NHS complaints arrangements more accessible and effective. The National Audit Office report, Feeding Back? Learning from complaints handling in health and social care [NAO 2008; paragraph 2.5], stated: “Only 5% of people who had been dissatisfied with NHS services made a formal complaint. Sixteen per cent made an informal complaint to which they did not expect a written response, but 79% did not complain at all. Most commonly, people did not complain because they lacked confidence in the system: 32% who did not complain formally stated that they thought nothing would be done as a cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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result of their complaint, whilst 6% did not feel their complaint would be looked at with sufficient independence or fairness.” 9. The NHS sees on average over a million people every 36 hours, and the vast majority of NHS patients experience good quality, safe and effective care. If someone is dissatisfied with the service they receive from the NHS, it is right they complain, and have that complaint properly investigated. 10. The 2009 regulations were therefore well publicised at both the consultation and roll-out stages. Officials expected that, because of this, there would be an increase in complaints. Over the period, there was also an increased demand for NHS services, which may have influenced the overall number of complaints made. 11. The 2009 reforms also indicated potential issues around the recording of complaint. The new regulations seek to encourage the swift resolution of oral complaints. Oral complaints “resolved to the satisfaction on the complainant not later than the next working day after the day on which the complaint was made” do not fall to be treated as complaints under the regulations (regulation 8(1)(c)). During the transition phase, it became apparent that some trusts had not been properly recording oral complaints under the earlier legislation, falsely believing that a complaint lodged with PALS became a recorded complaint only if PALS were unable to resolve it. The Department of Health’s view is that all complaints not falling within regulation 8(1)(c) should be recorded, and a clarification of the legal position was published in the weekly bulleting to NHS managers, “t130”, “the week” [issue 130, 22–28 January 2010]: 12. It is possible this mis-recording has been corrected since this clarification was issued, leading to an increase in the number of recorded complaints. 13. In itself, the number of complaints received does not provide a reliable indicator of the standard of services provided. An organisation providing NHS services that has a positive approach towards complaints handling, fully publicises it complaints arrangements and has good local reputation for dealing with complaints openly and honestly may be expected to receive a greater number of complaints than an organisation that has less publicity and a reputation for responding in a negative fashion. Yet, in these circumstances, the trust that has the greater number of complaints, and which acts on this feedback, may well provide the better standard of service.
The effectiveness of the new complaints system introduced on 1 April 2009 14. The Department has not, to-date, conducted a review of the new complaints arrangements. The regulations have been in place only since April 2009, and we have data covering only the first year of operations—which were published on 25 August 2010. More than one year’s worth of data would be required to undertake a meaningful assessment. 15. In the Impact Assessment to accompany the 2009 regulations, the Department of Health wrote: “Some local health and social care providers are already delivering high quality complaints handling within their organisations, though constrained by the current legislative requirements. Others have some way to go to meet the basic principles of good complaints handling, and we have offered general support as we move through the transition process, prior to April 2009. “However, the Department believes it is important to evaluate the impact of the new arrangements, in meeting their policy aims. A formal evaluation will be undertaken three years into the new arrangements, when we would expect there to be real benefits accruing to local organisations and service users.” 16. In the Foreword to her report, Listening and Learning: The Ombudsman’s review of complaints handling by the NHS in England 2009–10 [October 2010], the Health Service Ombudsman, Ann Abraham, states that: “The new system for handling health complaints, introduced in April last year, means a quicker, simpler route to resolution for patients and their families”.
The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman 17. Given that the new arrangements have been in place for only 21 months, with one year’s data, it is too early to give a view on the effectiveness of the local resolution stage of the NHS complaints arrangements
Local resolution and Ombudsman 18. Whilst central data are collected on the number of complaints received, data on the number of complaints resolved locally are not collected centrally. As we stated in Liberating the NHS, we wish to strengthen arrangements for information sharing. 19. In 2009–10, the NHS received 151,832 complaints, whilst the Health Service Ombudsman (HSO) received 15,575 complaints. This tends to indicate that local resolution is generally effective, but there may be a number of reasons why someone dissatisfied with the outcome at local level does not take the complaint to the HSO—for example, disillusionment with the system. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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20. We consider that the 2009 reforms are better able to provide a quicker and simpler means through which to resolve a complaint. Nonetheless, the number of cases referred to the HSO indicates that the NHS as a whole still has some way to go in terms of meeting consistently good standards of complaints handling.
Independent Complaints Advocacy Services 21. In 2009–10, Independent Complaints Advocacy Services (ICAS) were involved in roughly 8.6% of NHS complaints, whether providing remote or face-to-face advocacy. It is important that all who wish to make a complaint are given the opportunity, and appropriately supported.
The role of Patient Advice and Liaison Services (PALS) as a “gateway” to the complaints system 22. PALS were set up as a facilitator for users of NHS services, with part of the role being to provide information about the NHS complaints arrangements and, if users wish to make a complaint, how to get independent help through, for example, the Independent Complaints and Advocacy Services. They provide on the spot help and can be powerful arbitrators between service users and trust staff, diffusing problematic situations and better enabling cooperation and understanding. 23. PALS have no formal role in the complaints process, in the sense that a complaint does not have to be routed through PALS, although there is evidence PALS have the potential to reduce complaints [National Evaluation of Patient Advice and Liaison Services; University of the West of England; 2008].
The failure of some Foundation Trusts to report numbers of complaints 24. When discussed in April 2007, Monitor did not agree that this information should be collected centrally from NHS Foundation Trusts, so did not give approval for its collection to be mandatory. However, Foundation Trusts are able to provide the data on a voluntary basis.
The Government’s plans for future complaints-handling arrangements (the White Paper says, on p 19, “Local authorities will be able to commission local HealthWatch or HealthWatch England to provide advocacy and support, supporting individuals who want to make a complaint”) 25. The Government has no plans to undertake further reform of the NHS and adult social care complaints arrangements. 26. Independent NHS complaints advocacy services are currently commissioned centrally by the Department of Health on behalf of the Secretary of State for Health. Following public consultation on the proposals in “Liberating the NHS”, these services will be commissioned by Local Authorities from 2013. Local Authorities will be able to commission these services directly or to ask their local HealthWatch organisation to provide the services. 27. Local HealthWatches themselves will also support patients who wish to make a complaint by giving information to users of local care services about choices that may be made with respect to those services.
How data from complaints will feed into the planned new commissioning arrangements (the White Paper says, at Para 2.26, “Building on existing complaints handling structures, we will strengthen arrangements for information sharing”) 28. All sources of user feedback should be a central mechanism for providers to assess the quality of their services, of which complaints are an important part. 29. In December 2009, the HSO consulted publicly on sharing and publishing information on complaints. In addition to considering and resolving individual complaints, she wants to ensure that improvements in the quality of service provided by the NHS are secured as a result of her work. In its formal response, the Department of Health agreed that it is important for complaints information to be used by regulators potentially to trigger further investigations and inform risk summits. 30. Within this context, the Government is proposing to make appropriate legislative changes to strengthen the arrangements for the sharing of information between regulators, HealthWatch, and the HSO. It is important to share complaints information as much as possible, having regard to the need to protect the privacy of her casework.
Part 2—Litigation Summary — The Ministry of Justice, which has responsibility for the civil justice system, is currently consulting on proposals for reform of civil litigation funding. — Conditional Fee Agreements (CFAs) significantly contribute to the costs of litigation. — The Department of Health is currently considering ways to improve the way litigation is handled in the NHS, to speed up claims settlement and reduce costs. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Introduction 31. The Ministry of Justice has responsibility for the civil justice system. The rising cost of litigation is a concern for the Government, and commercial and third sectors. It is right that claimants have the means to obtain redress, but this should not be at disproportionate cost. It is for this reason that Lord Justice Jackson was asked to review1 the costs of civil litigation. 32. Lord Justice Jackson published his preliminary report in May 2009 and his final report in January 2010. In response, the Ministry of Justice recently published a consultation, Proposals for reform of civil litigation funding and costs in England and Wales,2 on 15 November 2010. We expect these proposals, subject to consultation and Parliamentary process, to reduce the costs of litigation borne by the NHS.
Background 33. The broad centralisation of litigation handling within the NHS occurred within the 1990s. The NHS Litigation Authority (NHSLA) was established in 1995 as a special health authority. The Secretary of State established two NHS indemnity schemes in 1996, setting out new NHS arrangements for handling clinical negligence claims. The Secretary of State’s function of administering those schemes is delegated to the NHSLA. Further schemes covering some non-clinical liabilities were established in 1999. 34. The NHSLA provides assistance through the NHS indemnity schemes to member organisations. It therefore does not generally cover the liabilities of family health services providers in primary care (ie general practitioners, dentists, ophthalmologists and pharmacists), who make their own arrangements. Nor does it cover all aspects of litigation. The area of litigation that is generally covered is personal injury claims flowing from clinical negligence, employer and occupier liabilities. Areas that are not generally covered include employment and contractual disputes. 35. The data available centrally therefore does not cover all litigation against the NHS.
Issues The cost of litigation against the NHS 36. The NHSLA’s Report and Accounts 20103 show that nearly £821m was spent on litigation by the NHS indemnity schemes in 2009–10. This is the monetary costs of defending and settling claims supported by the schemes. This figure excludes data from the Property Expenses Scheme, which assists with property damage rather than litigation. 37. Whilst impossible to quantify, we acknowledge that litigation will also have a non-pecuniary cost to the individuals involved, both staff and patients, due to anxiety and worry.
Reasons for the inflation of litigation costs in recent years 38. Lord Justice Jackson identified in his report 16 general factors that can give rise to excessive costs, especially when they operate together. The factors we believe that are most relevant to cases involving the NHS are: — lawyers are generally paid by reference to time spent, rather than work product; — the recoverable hourly rates of lawyers are not satisfactorily controlled; — the costs shifting rule (“the loser pays”) creates perverse incentives; — the CFA regime has had unfortunate unintended consequences, namely (a) litigants with CFAs have little interest in controlling the costs which are being incurred on their behalf and (b) opposing litigants face a massively increased costs liability, and — there is no effective control over pre-issue costs; certain pre-action protocols lead to magnification of these costs and duplication of effort. 39. Of these factors, predominant is the increasing use of CFAs to fund litigation. This type of funding arrangement generally incurs additional costs, such as After the Event (ATE) insurance, and exacerbates the other factors. In NHS litigation, CFAs are only used by claimants. 40. Additionally, there has been a steady rise in the numbers of claims reported to the NHSLA in the past two years following a period of stability. This is approximately 10% per year. This extra activity has contributed to the increasing costs borne by the NHS. 1 Further information about Lord Justice Jackson’s review can be found on the Judiciary of England and Wales website at http:// www.judiciary.gov.uk/publications-and-reports/reports/civil/review-of-civil-litigation-costs 2 Further information about the Ministry of Justice consultation is available at http://www.justice.gov.uk/consultations/jackson-review-151110.htm 3 The NHSLA Report and Accounts 2010 is available from the NHSLA website at http://www.nhsla.com/NR/rdonlyres/ 3F5DFA84–2463–468B-890C-42C0FC16D4D6/0/NHSLAAnnualReportandAccounts2010.pdf cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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The impact of conditional fee (“no win, no fee”) arrangements on litigation against the NHS 41. This type of claim funding allows claimants’ solicitors and/or barristers to charge an additional success fee of up to 100% of the ordinary fee for winning a case, although they cannot charge any fee in the event that they lose. This creates an incentive for law firms to take on less risky cases in order to reduce exposure and maximise profit. Costs are generally recovered from the “losing” party. 42. Claimants may also obtain some form of costs protection so they are not exposed to defence costs in the event that they lose a claim. This is generally through ATE insurance. ATE can also cover the cost of disbursements (such as medical reports) that may be necessary to pursue the claim. Premia for ATE are also recoverable from the unsuccessful party. 43. The NHSLA has collected data on success fees from CFAs during the past year. It is clear that they contribute significantly to the higher costs of CFA cases when compared to cases with similar damages agreed but funded through alternative arrangements. The NHSLA will submit separate evidence with a more detailed analysis.
The effect of litigation on the development of an open reporting and learning culture in the NHS 44. The Government expects the NHS to be open about mistakes, apologise to those affected and ensure that lessons are learned to prevent them from being repeated. The Department acknowledges that the fear of litigation may be one of the factors that hinders this reporting and openness and may have a significant impact on openness with patients in particular. 45. The NHSLA expressly stated in a circular, re-released in May 2009, that an apology is not an admission of liability. Despite being clear about this, we do accept that more needs to be done to develop openness and that is why the Department is progressing work in this area. There is also widespread agreement that providing patients with full details of mistakes and apologising for them actually reduces the likelihood of litigation. 46. The National Patient Safety Agency developed a Being Open4 policy to support communication to patients. The importance of openness is emphasised in the NHSLA’s Risk Management Standards5.
The Government’s intentions regarding the implementation of the NHS Redress Act 2006 47. As the Department of Health indicated in its evidence to Lord Young’s report “Common Sense, Common Safety”.’6 “The Department of Health has already considered new approaches to the handling of low value clinical negligence claims. The NHS Redress Act 2006 missed an opportunity to improve fundamentally the way that clinical negligence claims are handled. It should have focused on improving the fact-finding phase prior to pursuit of a claim in order to facilitate faster resolution of claims and leaving it to the parties concerned, or ultimately the courts, to determine cases not resolved by the fact-finding. The Department of Health is currently considering ways to improve fact-finding as a means to speed up claims settlement and reduce costs.” 48. The Department is also working with the Ministry of Justice on another of Lord Young’s recommendation, to explore whether the Road Traffic Accident scheme could be extended to low value clinical negligence claims.
The possible benefits of a statutory right to compensation for “treatment injury” from an independent fund, without the need to prove negligence, as required under tort law 49. The Department has considered the introduction of “no fault” schemes in the past during the Making Amends (DH, 2003) consultation and during the passage of the NHS Redress Act 2006. We have not heard a convincing argument that the benefits outweigh the costs. 50. Potential benefits expected of “no fault” compensation are: — fairness; — speedier resolution of cases; — lower administrative and legal costs; — increased certainty on the circumstances in which compensation is payable and increased consistency between claimants; — reduced tension between clinicians and claimants; and — greater willingness by clinicians to report errors and adverse events. 4 Information about Being Open is at http://www.nrls.npsa.nhs.uk/resources/?entryid45=65077 5 The NHSLA’s Risk Management Standards aim to help reduce the number of negligent or preventable incidents. Further inform is available from http://www.nhsla.com/RiskManagement/ 6 Further information about Lord Young’s report is available from http://www.cabinetoffice.gov.uk/news/lord-young-restores-common-sense-health-and-safety cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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51. A review of “no fault” compensation by the Scottish Government recently concluded and we await the outcome of that review with interest.
Encouraging the use of mediation before litigation is initiated 52. The NHSLA has been offering to mediate on cases since 2002 although claimants generally do not take it up. However, when it is used, it usually produces good outcomes, although these cases are where claimants have recognised that they are unlikely to succeed. Its appeal as a costs saver lies in comparing its cost to that of litigation, but very few cases dealt with by the NHSLA go to trial—around 2%. 53. Claimed saving potential depends on mediating sufficiently early on in the process. Claimant lawyers are understandably reluctant to advocate mediation without investigating cases in full ie to the immediate pre- trial state of readiness with all costs incurred already. To do otherwise may leave them with a potential professional negligence risk for not doing their best for their client. 54. Neither defendants, nor the courts, can force claimants to mediate. Where claimants have received expert advice that mediation would be of little benefit, then they may attend and stonewall so as to avoid litigation costs exposure. There is no evidence to suggest that making it compulsory would alter this position. Mediation therefore runs the risk of inflating costs. December 2010
Supplementary written evidence from the Department of Health (CAL 01A) Consideration of New Zealand “No Fault” Model At the Health Committee hearing on Tuesday 15 February 2011, I agreed to write to the Committee to respond to Question 191 from Chris Skidmore MP. He asked whether the Department had considered the scheme operated in New Zealand, which was a recommendation from the previous Health Committee’s investigation into Patient Safety. In the Government’s response to the Health Committee’s report on Patient Safety, the Department was clear that it intended to await the outcome of the Scottish Government’s review of ‘no fault’ compensation. As you may know, the Scottish Health Secretary established a short-life working group on 1 June 2009 to consider the potential benefits for patients and whether such a scheme could be introduced alongside the existing clinical negligence arrangements. The review included examination of the cost implications; the consequences for healthcare staff; and the quality and safety of care. It also took account of the wider implications for the system of justice and personal injury liability and examined the evidence on how ‘no fault’ compensation was operated in other countries. The Group has just reported, and recommends the introduction of a “no fault” system based on the model currently in operation in Sweden, although consideration was given to the New Zealand model. The Scottish Government response states that it will look at how a scheme would work in practice. Whilst Department of Health officials are now considering the points made in the Scottish report, the Coalition Government has already announced a number of measures that should improve the time taken and the costs involved in settling claims in England. These include the proposals to reform conditional fee agreements and the introduction of a low value clinical negligence claims scheme, which have been described to the Committee. David Flory CBE February 2011
Supplementary written evidence from the Department of Health (CAL 01B) At the Health Select Committee session on Tuesday 10 May, I promised to provide you with written responses to your questions in respect of: — handling complaints of a serious nature differently from complaints of a more mundane nature; — the estimated funding for HealthWatch; and — in relation to a “no fault” compensation scheme, the discrepancy in the estimated increase in the number of claims between the Scottish figures and those estimated by Sir Liam Donaldson. The Committee also raised the issue of the lack of information to complainants on the action to be taken by an organisation following receipt of a complaint. The regulations require the response letter to a complaint to identify any matters the organisation considers to be needed, but there is no formal mechanism in place to reassure complainants they have been carried out. Following discussion at Committee, I have asked my officials to look into this, and to come back to me with options to address this issue. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Handling Complaints
We believe that the general principles underpinning good complaints handling should be common to all complaints received; in other words, a simple, consistent, unified approach across health and adult social care. This also makes the arrangements easier to understand for service users.
The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 provide that the arrangements for dealing with complaints must be such to ensure that: — complaints are dealt with efficiently; — complaints are properly investigated; — complainants are treated with respect and courtesy; — complainants should receive a timely and appropriate response; — complainants are told the outcome of the investigation into their complaint; and — if appropriate, action is taken in the light of the outcome of the complaint.
Similarly, we consider that all complaints are initially best dealt with at a local level, better ensuring that local organisations learn from their mistakes, and use the information from those complaints to improve services.
However, whilst the underlying principles remain constant across all types of complaint, your question does raise the important point that local organisations should act proportionately in respect of individual complaints. A range of options are available at a local level to support resolution of a complaint, and organisations needs to determine how to handle a case based on the needs of that individual case. Making Experiences Count gives the following as examples of flexible approaches that may be used: — A robust risk assessment mechanism that allows serious complaints, such as those involving abuse or unsafe practice, to be identified quickly and dealt with according to the appropriate legislation (such as Protection of Vulnerable Adults or Child Protection legislation). — The direct involvement of the most senior managers or clinicians at an early stage, where appropriate. — Face-to-face meetings, at an early stage, between everyone concerned in the complaint to make sure the circumstances that gave rise to the complaint are clearly understood. — Independent mediators who could help when the complaint includes relationships that have broken down. — People independent of the service provider, the commissioning organisation or even the locality, who could be called on to conduct an investigation where complaints involve sensitive or complex issues.
HealthWatch Funding
Details on envisaged funding for HealthWatch are now subject to the outcome of the Listening Exercise, but total funding for HealthWatch is estimated to be £60.5 million/£68.8 million/£66.1 million/£66.6 million over the period 2011–12 to 2014–15. New funding over this period is likely to be 1.4 million/£9.7 million/£7 million/£7.5 million.
Local HealthWatch: existing funding
It is our intention to redirect funding for the following activities to local authorities from 2012–13: — Existing functions of Local Involvement Networks: DH allocates a grant of £27 million to local authorities for Local Involvement Networks (LINks), plus £1 million for regional LINks support through the Government Offices. In addition, DH spends £50,000 on LINks exchange information sharing website. — Helping the public with health related decisions. Based on the estimated cost of the Primary Care Trust Patient Advice and Liaison Services (PALS) function, the cost of this activity is £19.3 million per year. This is calculated using an evaluation of PALS (source: National Evaluation of Patient Advice and Liaison Services Final Report, Evans et al Jan 2008), the average cost of a PCT PALS service (uprated to 2009–10 costs) is £169,000. However, the report also states that time spent dealing with functions other than providing advice on choice is around 35% of staff time. Assuming that staff costs account for 70% total, this suggests that existing spend by PCTs is about £127k per PCT.
However, clearly only some of these functions are planned to transfer to local HealthWatch. We will have these data later this summer. This may refine our assessment of the cost of this activity and the total funding envelope for local HealthWatch. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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In April 2013, when local authorities will become responsible for the commissioning of Independent Complaints Advocacy Services (ICAS), it is our intention to redirect the following funding: — Complaints advocacy: The Department of Health currently holds a central budget of £11.7 million for the ICAS for this. The ICAS contract will be maintained in 2011–12 and 2012–13. From 2013–14, the funding will be transferred to local authorities.
Local HealthWatch: New funding — Lost economies of scale in commissioning complaints advocacy services: there is currently one advocacy office for six local authorities, so commissioning advocacy services from local HealthWatch will result in a loss of economies of scale and additional training costs. This is estimated to be £2.5 million per year. — Increased demand for choice and complaints: we expect that patient demand for help to make choices and complaints will increase with the new arrangements. Patients currently search for different routes for information and support. The aim of HealthWatch is to make this easier and clearer for patients. We have allowed funding of £0.5 million/£1 million/£1.5 million over 2012–13 to 2014–15 for an increase of 2.5% annual above the existing spend.
HealthWatch England: New funding We have made an initial estimate of the new functions for Healthwatch England of a maximum of £3.5 million to fund staff (and associated costs) to undertake the functions outlined above. There will also be additional start up costs for Healthwatch in 2011–12 and 2012–13 including staff recruitment/training, office set up and branding. The total cost is £4.6 million, split £1.4/£3.2 over these two years. This is additional funding to avoid disrupting current delivery of existing services. More detailed information may be found in the Impact Assessment to support publication of the Health and Social Care Bill 2011.
“No Fault” Compensation The economic modelling of a policy proposal will produce a range of scenarios, and Ministers and officials will identify the one they believe, based on available evidence, to be most likely to materialise. During the development of Making Amends in 2003, the Conditional Fee Agreement (CFA) market was still relatively immature and officials would have found it difficult to anticipate, with any confidence, the scale of the contribution we now know has been made by CFAs. On this basis, and with hindsight, it may be that officials took an overly high view as to the projection of an increase in the number of claims under a “no fault” system. Scottish Ministers and officials will have chosen their 20% scenario based upon the evidence that is available to them. Given what we know now, I would expect the increase to be more modest, although I would not like to attribute a specific figure, given that the Department of Health has undertaken no more recent analysis of the effect of pursuing a “no fault” system. Simon Burns MP May 2011
Written evidence from Mrs Dee Speers (CAL 02) 1. Summary — August 2005: My son died in August 2005 whilst detained under Section 2 of the MHA “for his own safety” whilst in the Duty of Care of WLMHT. — WLMHT took away his liberty and then failed to keep him safe! — The case is now well documented in Parliament and with NHS Complaints, and I am still seeking resolution after five years. — My son’s possessions were sent back to me in a black bin liner with NHS Household Waste printed on it and it is this particular act of inhumanity that has driven me for the past five years. Thank you for the opportunity to submit written evidence for your inquiry.
2. The main reasons for the recent sharp rise in NHS complaints I believe a lack of regulatory powers (passive regulation mainly based on cosy relationships) and ineffective complaints system has led to many senior management teams acting with impunity. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3. The effectiveness of the new complaints system introduced on 1 April 2009 SHA SUI Investigation and costs of PHSO process I have since asked FOI questions and can confirm that under the current process, the PHSO investigates less than 1.5% of complaints brought to her, leaving over 98% of complaints unresolved. PHSO has never investigated a reconsidered complaint and this public service costs the Tax-payer in excess of £34 million per annum. I note in your online information you say: The Health Service Ombudsman has just produced a report on its first year of operation. In her foreword to that report, she says that “The NHS needs to listen harder and learn more from complaints. When it fails to do so, it is missing a rich source of insight and information that is freely and readily available and comes directly from service users.”(isn’t the next question why isn’t the PHSO addressing this by highlighting the complaints which the NHS have not dealt with … could it be that she hasn’t dealt with them either!?)
4. Flawed processes: Based on self-assessment, WLMHT are awarded an Excellent Rating just six months before a full investigation into patient safety is launched (a) Boomerang Bosses … failing managers are rewarded for failure! (b) Healthcare Commission closes without any public consultation.
5. The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman — ICAS have no powers and unless the complainant knows what to ask for ICAS cannot advise. — PHSO See above.
6. The role of Patient Advice and Liaison Services as a “gateway” to the complaints system — Both ICAS and PALS are not independent enough.
7. The failure of some Foundation Trusts to report numbers of complaints — Ongoing concern and only statutory regulation will address this.
8. The Government’s plans for future complaints-handling arrangements (the White Paper says, on p 19, “Local authorities will be able to commission local HealthWatch or HealthWatch England to provide advocacy and support ... supporting individuals who want to make a complaint”) — We need a totally independent, fully accessible complaints system not one reliant on post code lottery funding.
9. How data from complaints will feed into the planned new commissioning arrangements (the White Paper says, at Para 2.26, “Building on existing complaints handling structures, we will strengthen arrangements for information sharing”) — “Building on existing complaints handling structures” is building on rocky foundations and bound to fail. November 2010
Further written evidence from Mrs Dee Speers (CAL 02A) Wider Landscape — Have been in NHS Complaints for over five and a half years trying to resolve my complaint. Have been passed from pillar to post and nobody will take responsibility for explaining why my son died. Was he murdered … I still don’t know? — Have secured a Healthcare Commission Upheld complaint and chased an Investigation into Patient safety. — Case has been refused by PHSO for an investigation as “no Worthwhile Outcome” can be identified … despite “six months reconsideration” and many refs to “further resolution from HC”. PHSO accepts “Trust failed your son and family”… as does “the then CEO”….ref letter from Ann Abraham 16 March 2010. — SHA NHS London granted an SUI almost five years after my son’s death as an inpatient detained “for his own safety”. Draft Report is currently awaiting publication and can certainly identify the “Worthwhile Outcomes” missed by PHSO. — I believe the inpatient death of any patient, if unnatural, MUST be fully investigated and publically reported on … and I have many refs to deaths where families are still seeking resolution … some for over a decade! cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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— An example of poor investigation can be seen via the London Legacy cases. Over 1,000 cases (many concerning homicides) have not been independently investigated as per Health Service Guidelines (HSG). In fact we are informed “mental health staff from all over London have been brought in to ‘act as investigators’” … can you act or is training meant to be involved? — I had a brief look at the legacy (21?) cases listed on NHS London website and they were all quite brief. Again, they did not address alignment to Trust policies, national guidelines so difficult to ascertain if correct pathways were or were not followed in the care. PHSO do not align their assessments with policies, guidelines, NICE etc either. — HSG(94)27 is a case in point … its importance was underpinned by NHS CEO David Nicholson in July 2007 … in a letter to all Trust CEOs but still we have little real evidence of the independence of any investigation. — Independence is a HUGE issue and personally I would like to see comparable data on what we paid solicitors and barristers and what we now pay for often “in-house” management consultants? — Apparently hired “management consultants” doing NHS investigations is quite a controversial topic: when this type of investigation first started 10 or 15 years ago, they were rigorous and well balanced exercises done by some pretty distinguished lawyers whose words carried weight. Sadly they are now stage-managed routines in PR with the families being totally outgunned. — Eg A whitewash homicide HSG investigation was done recently by Verita and the victim’s family’s MP is Theresa May (Home Secretary) who is said now to be up in arms about it. I would like to see a Parliamentary Question being asked on just how much is being paid to all the various “consultants” like Verita, HASCAS (Health and Social Care Advisory Service), … and management consultants commissioned by various Strategic Health Authorities. — Alignment: again a HUGE issue and when solicitors and barristers were used they always align (according to the rules of a good investigation) if these rules are not being followed then questions of negligence will potentially arise.” — I have noted on a Trust meeting minutes in 2007 that there were concerns, and they stated it was a risk, that they were 2½ whole time equivalent short of community nurses serving the local area. However, this was not mentioned in the SUI carried out, the workload of the Community Psychiatric Nurse was not even stated. But at the Inquest it was 37 clients (DH recommends no more then 35 maximum). — So, perhaps all SUIs/HSG investigations to be also aligned to Trust risk registers? This would immediately fully involve Trust directors and it could then be noted if they had, in fact, acted upon these risks? — The only option is often JR against the PHSO and a case I am aware of recently where the judge recommended a deal, subsequently signed by both sides. According to the agreement, the complainant has to request that the PHSO continue the investigation and that the Ombudsman will consider this request in the light of further representations from the Care Quality Commission and the Trust complained of. — It now seems PHSO will have to either: (i) Refuse to go ahead with the final report and be seen to ignore patient safety in the Trust; plus waste the scores of thousands of pounds from the investigation over two years. (ii) Go ahead with a proper report using the proper agreed headings and thereby properly considering the issues in the interest of fairness to all parties. January 2011
Supplementary written evidence from Mrs Dee Speers (CAL 02B) Thank you for the opportunity to speak with the Parliamentary Health Select Committee and for the opportunity to further inform you. I am mindful of my tongue in cheek comment on the Commission for Joined Up Thinking, which I believe was picked up by Radio 4 next day. I am also aware that “the buck stops here”. HSC are, we are assured, holding the Government departments to account and televised debates are “Democracy in Action”. I do not wish to delve into past recommendations and failure to implement them, or provide an analysis of previous proposals put forward by the Health Select Committee … but of course am happy to do so should you require it. Wherever there are human systems, there will be failures but it’s the ability to learn from these failures that needs to be addressed. The PHSO accuses the NHS of failing to learn lessons from service users freely given … and my response to that is as “service users” we don’t have the public funding, the expertise, or the insider knowledge to consistently provide the systems and processes with, as recently commended by PHSO “free advice” … it is not our responsibility and should not be an expectation! cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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In not seeking to apportion blame, I am also mindful that reward for failure is a huge problem in the NHS. So called Boomerang Bosses: — Leave their trusts just before an investigation shows (alludes to!) the management failures at the given trust. — Senior management are given rewards for failure thus not helping the persistent mindset clearly developing. — Senior management can usually access full salary, full pension and often a bonus for losing a position they have failed in! — The persistent mindset displayed by many senior management teams simply moves to another area of the NHS where flawed thinking further advises local or national policy. I have an extensive list of examples should you or Committee require them. But PHSO and the complaints process (we no longer have a system!) consistently fails to admonish errant trusts thus actively encouraging poor behaviour! Concerns that are accumulating: — Persistent mindsets. — Poor training (most worryingly acceptance by student staff that failure is acceptable practice!) — Untenable complaints process. — No effective Whistleblower legislation. — Poor support of grieving families. — Ongoing lack of awareness of the mental pressure caused to complainants. — Ineffective analysis of needs. Thank you again for this opportunity and I hope my contribution has been helpful. 10 February 2011
Written evidence from the NHS Litigation Authority (CAL 11) This is the response of the NHS Litigation Authority (NHSLA) to the enquiry into the above by the Health Select Committee.
Summary — Complaints: We have focussed comment on the desirability of apologies and explanations. — Litigation: Our outlay on clinical negligence claims against English NHS bodies was almost £800 million in 2009–10. A major factor in the increase in cost in recent years has been the regime of recoverable success fees and ATE premiums, abolition of which has been recommended by Lord Justice Jackson in his review of civil costs. — We believe that the NHS has become more open in recent years and that clinical negligence litigation is not the main factor impeding further progress. — No fault compensation is unlikely to be affordable, unless levels of damages were to be massively reduced, which could lead to legal challenges. — Negotiation results in far more settlements than mediation, although the latter has an important part to play in some intractable cases.
1. Complaints 1.1 NHSLA has no formal role in the management of complaints by the NHS but, for obvious reasons, has always been keenly interested in the complaints process and whether or not it impacts on either the incidence or the resolution of compensation claims. 1.2 We have encouraged candour in all dealings between patients and NHS colleagues, both clinical and otherwise. Recognising that we could not dictate practice, we have sought both to encourage best practice and to remove the excuse of litigation for failure by the NHS to engage with patients and their families. 1.3 We have done that by guaranteeing that any apology or explanation offered in good faith will never be a reason for us to refuse an indemnity under the schemes we manage for the Department of Health and the NHS. We first issued that promise in 1997 but most recently repeated it in a circular— http://10.10.65.249/NR/rdonlyres/00F14BA6–0621–4A23-B885-FA18326FF745/0/ ApologiesandExplanationsMay1st2009.pdf—also signed by many other organisations such as the BMA and GMC, all of which have endorsed our approach. This parallels the NPSA Being Open initiative, and the promise of candour in the NHS Constitution. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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1.4 Our anecdotal view is that fear of professional regulation and/or employment disciplinary action is of greater concern to those involved than “litigation”, although the term is used to encompass all three possible outcomes.
2. Litigation 2.1 The Cost Of Litigation Against The NHS 2.1.1 NHSLA’s remit extends only to England. 2.1.2 During the last three financial years, our total payments on clinical negligence claims (including legal costs) were as follows: 2007–08 £633m 2008–09 £769m 2009–10 £787m 2.1.3 The comparable figures for non-clinical claims (mainly Employers’ Liability, Public Liability and Professional Indemnity) were as follows: 2007–08 £25m 2008–09 £34m 2009–10 £34m 2.1.4 These figures exclude certain types of claim which are not within NHSLA’s remit, eg motor accidents, unlawful dismissal and most other employment claims, and contractual disputes under PFI arrangements and otherwise.
2.2 Reasons for the Inflation of Litigation Costs in Recent Years 2.2.1 We assume that the Select Committee invites comment about all aspects of litigation expenditure and not just the costs element. 2.2.2 As a consequence of advances in medical science, many patients who would once have died now survive. Also, those injured by the NHS tend to live longer than was the case 50 or even 10 years ago. In particular, many children with cerebral palsy are now expected to survive to the age of 50, 60 or even longer. Such individuals require extensive ongoing care, significant aids and IT equipment, and modified accommodation. All of these are very expensive. Even though NHSLA has been a pioneer in settling future care claims via periodical payment agreements, which means that the future cost of care is guaranteed throughout the life of the claimant, however long that may be, the remaining aspects of the claim are still paid in a lump sum. 2.2.3 The reduction in availability of Public Funding for clinical negligence claims and the corresponding rise in Conditional Fee Agreements, backed by After the Event insurance, has also contributed very significantly to the cost of litigation. We cover this topic more fully below in 2.3. 2.2.4 Claim costs are also increased by the fact that there is no constraint upon claimants’ lawyers, prior to litigation, to control their charges. We often discover that such costs have built up to an alarming degree before proceedings are commenced. At the moment, neither defendants nor the courts have any control over these costs. Where claimants’ lawyers are operating under a CFA, a mark-up of 100% is almost invariably claimed. That means that for firms in the City of London, under the guideline rates laid down by the Supreme Courts Costs Office, a partner may charge an hourly rate of £409, which becomes £818 once the uplift is applied. NHSLA can obtain top quality solicitors in the City of London to conduct defence work for £205 per hour.
2.3 The Impact of Conditional Fee Arrangements on Litigation against the NHS 2.3.1 We fully recognise that patients need proper legal advice in a complex area of law. However, the present CFA régime has led to a significant increase in legal costs paid by the NHS on personal injury claims. The contrast between the levels of claimant and defence costs is clearly illustrated in 2.2.4 above. 2.3.2 We have submitted data to Lord Justice Jackson’s review and to the Ministry of Justice showing our expenditure on success fees and After the Event insurance premiums on clinical negligence cases. We are happy to supply data to the Select Committee if desired. 2.3.3 For low value claims, the CFA régime almost always means that legal costs are disproportionately high when compared with damages. Furthermore, present CFA arrangements have given rise to persistent satellite litigation, given the huge difference such costs make to the eventual income or outlay of claimant solicitors on the one hand, and defendants on the other. Neither of those interests include the interests of the claimant, which ought to be central to any claim. 2.3.4 Indeed, in all CFA cases under a régime which permits recoverability of an uplift from the negligent party, there is exaggeration of the inherent conflict between the interests of the claimant’s solicitors and the claimant. We are not suggesting that solicitors behave unprofessionally in confusing those interests but there is, as a minimum, a perceived potential conflict by multiplying the level of the solicitor’s interest. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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2.3.5 Furthermore, since the claimant will never have to pay his or her own costs under such a régime, or the ATE insurance premium, he has no interest in controlling the costs of his lawyers. 2.3.6 These factors, combined, can paradoxically mean that small claims can become more difficult to settle than large ones because the compensator will be aware of the strong likelihood of disproportionality, and may therefore be less inclined to put forward an offer if liability is borderline than on a larger claim, where the disproportionality will be lower or non-existent. Removing or severely reducing the recoverability of success fees and ATE premiums, as recommended by Lord Justice Jackson, in return for an increase in General Damages for the claimant, is in our view the optimum way of resolving this serious problem. 2.3.7 A fixed costs régime for smaller claims would also advance the interests of justice. NHSLA continues to explore such arrangements actively. A further concern is that uplifts in costs make claims farming an attractive proposition. We believe that this has been a major factor in increasing numbers of new clinical negligence claims by 10% over each of the last two years. The projection for 2010–11 is for an even higher increase.
2.4 The Effect of Litigation on the Development of an Open Reporting and Learning Culture in the NHS 2.4.1 NHSLA has consistently advocated the giving of apologies and explanations by NHS bodies and individual clinicians, as noted at 1.3. 2.4.2 We believe that the NHS has become more open over the past ten years, although we accept that further progress is required. The reference to candour in the NHS Constitution and NPSA’s Being Open initiative are evidence of this. 2.4.3 It is important to bear in mind that in claims involving NHS bodies, it is the employing organisation which is the legal defendant and not the individual member of staff. In other words, NHS employees are not sued personally, although they may be called as witnesses at any trial. 2.4.4 In fact, in significant numbers of clinical negligence claims the liability arises not from the negligence of one identifiable individual but rather from alleged failings of the system. 2.4.5 Also, many claims arise from alleged errors which were not obvious or even detectable at the time of treatment, and it would therefore be inappropriate to criticise clinicians for lack of candour in such circumstances. 2.4.6 As stated under at 1.4, we believe that individual NHS employees are more likely to be fearful of a hearing before their professional regulatory body, or an internal disciplinary hearing, than having to appear as a witness in a civil claim for damages.
2.5 Government’s Intentions Regarding the Implementation of the NHS Redress Act 2006 2.5.1 It would not be appropriate for NHSLA to offer any comments under this heading, other than to say that we continue to explore alternative solutions for the low cost, speedy resolution of low value claims.
2.6 Possible Benefits of a Statutory Right to Compensation for “Treatment Injury” from an Independent Fund, without the Need to prove Negligence, as required by Tort Law 2.6.1 Various countries and states, for example New Zealand, Sweden, Finland, Florida and Virginia, operate versions of no-fault compensation schemes for medical claims. However, no two are the same and none operates no-fault in its strictest sense. All have had to review the scope of their schemes and their funding basis. 2.6.2 A particular feature of clinical negligence is that causation needs to be demonstrated, ie that the actions of the defendant caused injury/harm to the patient regardless of the condition which necessitated hospital treatment in the first place. Any no-fault scheme would presumably need to retain causation as a prerequisite to compensation. 2.6.3 In favour of a no-fault scheme would be that be that the concept of blame was removed. That should mean that cases could be resolved more quickly than at present and should reduce legal costs. Such a scheme might be perceived as fairer than the present system. 2.6.4 On the other hand, any no-fault scheme could be massively more expensive than the present tort régime. Compensation might be seen as much more widely available than at present, possibly giving rise to a “compensation culture”. 2.6.5 Numbers of claims could escalate dramatically, and there would need to be a streamlined system for handling them. Possibly, a tariff might be considered, but the chief difficulty with that is that individuals react in very different ways to the same injury, and the present system allows for this in the level of damages awarded or agreed for injury and also financial loss, the largest element in many claims. 2.6.6 Levels of compensation would need to be lower than at present, were such a scheme not to cost much more than current arrangements. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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2.7 Encouraging the Use of Mediation Before Litigation is Initiated 2.7.1 NHSLA is committed to resolving claims by mediation, where appropriate. However, compulsory mediation would be arguably authoritarian, and in practice we have found that very few claimants, or possibly their lawyers, have been prepared to mediate. We have used it most successfully in cases where there are matters at stake other than money, for example the Retained Organs litigation. 2.7.2 Our experience is that other forms of alternative dispute resolution, particularly negotiation, remain the optimum method of resolving claims. Over 98% of all clinical cases settled by NHSLA do not proceed to court for a determination of liability or quantum. 2.7.3 If mediation were to be used more extensively, there would be an increase in claimant legal costs because claimants’ lawyers would insist on attending. Additionally, there would be an impact on NHS resources, since mediations tend to be more successful if a senior clinician or manager from the trust attends. On the other hand, if more claims are resolved by mediation, even fewer cases are likely to proceed to a court hearing, which would result in a reduction of stress both for claimants and clinicians. 2.7.4 Overall, we would welcome greater use of mediation, but anticipate resistance from claimants’ lawyers and possibly claimants themselves in many instances. Often we are told by claimants’ lawyers that a case is not ready for mediation until they have investigated it to the ultimate degree, thereby incurring most pre-trial costs anyway. 2.7.5 We therefore do not believe that merely encouraging mediation will have much practical effect. Encouraging parties to talk to each other in a less structured setting might be more effective, and indeed this is already advocated in the Pre-Action Protocol for the Resolution of Clinical Disputes, a document which reflects a high degree of co-operation between claimant and defendant representatives and includes a mediation option. December 2010
Supplementary written evidence from the NHS Litigation Authority (CAL 11A) Background The NHSLA fully supports (and is already taking steps to implement) the recommendations made by Lord Justice Jackson on the costs of civil litigation. The following proposal is informed by Lord Justice Jackson’s report but sets out a direct response to the recommendation made by Lord Young in his report “Common Sense—Common Safety” to “explore the possibility of extending the framework of the Road Traffic Accident Personal Injury Scheme to low value clinical negligence claims” with the aims of reducing legal costs and speeding up the claims process. It is intended to run side-by-side with the Lord Justice Jackson’s proposals rather than as an alternative. It is proposed that NHSLA should design and run a scheme, based upon the RTA Scheme process but to operate within the Clinical Negligence Scheme for Trusts (CNST) which it administers. It would be voluntary and therefore it would not require legislation. The NHSLA would expect to negotiate the parameters and the level of fixed costs with the Association of Personal Injury Lawyers (APIL). It has good links with that organisation which “exists to help its members fight for the rights of injured people” (www.apil.org.uk). The NHSLA has developed a Case Management System (CMS) which operates on a paperless basis. The Scheme would be implemented by an extension of that existing system. Information would be exchanged via a secure link enabling claims to be input directly onto CMS by claimants or their lawyers. Medical records would be scanned in and stored against the claim. Data security is a CMS priority. In the future, there is no reason why the system could not be adapted for the wider PI market.
Scheme Costs The NHSLA Scheme would be cost-neutral. The NHSLA settled an average of 1,850 claims annually for damages of between £1–25,000 during the period 1 April 2007 to 31 March 2010. In addition, an average of 900 claims, valued at up to £25,000 were closed annually during that period for a nil damages payment. The ease of access to the new scheme for claimants and their lawyers, coupled with the absence of any risk to the claimant that they will be ordered to pay the NHSLA’s costs will inevitably mean more claims. It is impossible to tell how many; NPSA statistics on incidents for instance do not, in our experience translate into claims. For the same period, the NPSA received reports of an annual average of 966,000 patient safety incidents in England. There will be a time-lag between incident and claim and these figures do not reflect 100% returns from trusts. We can expect a volume of at least 3,000 claims annually based on past claims figures. The NHSLA will continue to handle claims according to its Framework obligations ie to settle justified claims promptly and defend unjustified claims robustly. This is not a no-fault scheme. Only justified claims will receive a payment of damages. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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The scheme will offer significant savings in claimant costs as it will involve fixed fees, eliminate additional liabilities such as After the Event Insurance—not necessary as no risk—reduce expert fees and reduce court costs. Any aggregate increase in damages payments overall to patients would be cancelled out by the saving in costs. For the period 1 April 2007 to 31 March 2010, NHSLA claims settling between £1–25,000 incurred average claimant costs of £12,229. By way of illustration only, if fixed fees were to be set at an average level of £3,000 inclusive per settled claim the saving would be over £9,000 per claim or £16.65 million per annum based on the existing volume of claims. The NHSLA would need to receive an additional 600 claims at the maximum level of damages of £25,000 plus costs to eliminate the savings ie a 1/3rd increase. It is anticipated however that the additional claims which are likely to be drawn into the scheme are those at the lower damages end which currently either do not receive funding to proceed or where the claimant views the existing process as to complex or risky to justify it. The claims process would be managed by experienced professional staff at the NHSLA; skilled in handling clinical negligence claims. There will be an initial additional cost to extend the IT system and an ongoing staff cost to resource both any significant increase in claims volumes and the reduced timescales offered by the scheme. This would not in itself result in the scheme costing more than it saves but would be a pre-requisite to its success.
The Patient For patients, the scheme offers enhanced Access to Justice when something goes wrong. They do not need to instruct a lawyer unless they wish to although the scheme will provide them with the safeguard of an independent legal opinion if they are offered compensation. The process will be quicker and simpler with a guaranteed time-scale. They will receive a guaranteed minimum interim payment of £1,000 (where liability is admitted and a medical report evidencing the injury has been obtained). They are free to opt out of the scheme to pursue traditional litigation at any time. They will have the option of asking for non-financial outcomes such as an apology or an explanation which would be available to them even where liability is denied. Lawyers acting for claimants will benefit from improved cash-flow as payments of costs are to be made on a regular basis (where there is a liability) rather than at the end of the case as now. Claimant lawyers may welcome a voluntary scheme agreed in consultation with APIL which provides a swift route to achieving compensation for their clients.
NHS Trusts The NHSLA acts for all NHS trusts in England. Scotland and Wales have separate arrangements. As such it can act as the one central point of contact for all claims falling under the scheme. This removes a significant complication which exists for the RTA Portal ie the need to act as a hub for numerous defendants as well as claimants. Here there is one body, the NHSLA, running the scheme for all NHS trusts in England. The NHSLA would wish to consult on an amendment to its membership rules to enable prompt admissions of liability. A condition precedent to any indemnity under the scheme would be for the NHSLA to be empowered to make prompt admissions of liability on behalf of any member or any organisation for which the member is accepting a liability, without prior consent. For the purpose of a Pilot it would give the member trust an opportunity to object to any admission (to comply with the case of Groom—v—Cropper). The NHSLA is in the unique position of being able to facilitate apologies, explanations and other non- financial outcomes either as part of any settlement or even where liability is denied. Often this is of more importance to a claimant who may have a continuing therapeutic relationship with the NHS trust. The NHSLA has an excellent record in this area, evidenced by its pioneering circular to its members on the subject and outcomes in cases such as the retained organs litigation.
Implementation The NHSLA would need the go-ahead to commence the work required to extend its IT system. It would need to consult with APIL to agree fixed fees. Wider consultation with the Defence Organisations (MPS, MDU and MDDUS), FOIL (the Federation of Injury Lawyers) and PI insurers would be beneficial to facilitate future development of the system. Implementation would involve four stages: 1. development of the system, consultation with APIL on fees, expert lists and timescales and testing (4 months from the go-ahead); 2. six month pilot; 3. extending the pilot to all CNST claims valued at £1,000–£25,000 going forward; and 4. consulting on extension to the Defence Organisations and the PI market. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Access to the Scheme Claimants or their representatives would access the scheme via a link on the NHSLA’s web-site. Patients could be directed to the link by NHS trusts and patient organisations. A separate stream will be developed for those who are unrepresented (Litigants in Person) as they cannot be expected to interpret records, instruct experts or assess quantum. Although the process will replicate the scheme, with the same timescales, they will be assisted throughout and will receive an offer to fund independent legal advice on any offer made.
Overview The new scheme would apply to all claims in England which currently fall within the scope of the Clinical Negligence Scheme for Trusts (CNST) where: — the total value is between £1,000–£25,000 plus CRU; — General Damages are at least £1,000; and — the incident occurred after 1 April 2011 (or another date to be agreed). It will exclude claims concerning minors or individuals who do not have legal capacity. Notification will trigger a limitation moratorium which will run until 35 days after the claim leaves the scheme, to avoid the cost of issuing protective proceedings. Underpinning the scheme will be an assumption of one way costs shifting ie the NHSLA will not seek to recover its costs, negating the need for ATE insurance. The NHSLA will also meet the cost of joint expert medical reports on breach of duty, causation and condition and prognosis, where these are required.
Process Summary A set of Rules will set out the process in detail. The Rules will define the points at which claims enter different stages or leave the scheme and the consequences of this. The claimant will be required to give seven days notice of an intention to leave the scheme. The maximum timescale from start to finish is eight months. Stage 1—Early notification, direct to the NHSLA, by secure electronic data exchange. Stage 2—(at the NHSLA’s expense and request). Disclosure of records and joint instruction of an expert on breach of duty and/or causation. Stage 3—Medical evidence on quantum, offers to settle and negotiation. Stage 4—Arbitration.
Stage 1—Early Notification — Log-in details are obtained via the NHSLA’s web-site. Key data is entered onto the NHSLA’s Case Management System by the claimant or their representative by completion of mandatory fields which will include: contact details for the claimant or their representative, date of birth, National Insurance number and the identity of the NHS Trust concerned; a description of the injury and medical details: — a schedule of special damage; — details of the alleged negligence and why this resulted in the claimant’s injury; — funding information, including whether a CFA is in place; — details of any non-financial outcome sought such as an apology; — bank account details for the claimant’s solicitor to facilitate payments; — a mandate from the claimant to authorise payments to his/her solicitor; and — a statement of truth. The claimant will be asked to specify if they are a litigant in person. This will trigger the separate stream for notification with an offer of assistance. Notification through this process will not equate to service of a Letter of Claim under the Pre-Action Protocol and if the claim leaves the scheme then the usual Protocol requirements will still apply. The NHSLA will send an acknowledgement within seven days, register the claim with the CRU and establish contact with the member trust. There will be a facility for the NHSLA to return claims which provide insufficient information, or which in its view do not fall within the scheme. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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The NHSLA will investigate and a response on liability will be sent within 28 days either: — Liability admitted. The NHSLA will facilitate an apology from the trust if this is requested and has not already been received. The NHSLA selects whether a condition and prognosis report is required. The claim proceeds to stage 3. Stage 1 fixed costs become payable. — Expert report required. The NHSLA selects either breach of duty, causation or both. The claim proceeds to stage 2. — Liability denied. The claimant’s request for non-financial outcomes, such as an explanation, may be addressed. The claim comes out of the scheme. The limitation moratorium comes to an end 35 days thereafter.
Stage 2—Expert Advice Expert advice may be necessary on breach of duty and/or causation. The NHSLA will obtain the relevant medical records from the trust and disclose these to the claimant within 42 days of entering stage 2, via the secure data exchange link in a scanned format. The claimant will obtain a report on the basis of joint instructions from an approved list of experts. Instructions to the expert will follow a pro forma which both parties can supplement within seven days of disclosure of records following which instructions will be dispatched. The report is to be sent by the expert to both parties within 42 days of instructions. This will be paid for by the NHSLA at a fixed rate and the NHSLA will agree to be bound by the report. If more than one report is required, the NHSLA will advise the claimant. The timescale can be extended by mutual agreement if there are difficulties with expert availability. The cap for the expert report fee can also be lifted in exceptional circumstances (defined in the Rules) by agreement. The NHSLA which will respond within 14 days of receipt of the report in line with the expert’s findings, either: — Liability admitted. The claim proceeds to stage 3. Stage 1 fixed costs payable within 14 days. — Liability denied on grounds of: — Breach of duty; and/or — Causation. In which case an explanation will be provided and the claim comes out of the scheme.
Stage 3—Negotiation & Settlement The claimant can request disclosure of medical records relevant to quantum within 42 days if the claim has not proceeded through stage 2. If required by the NHSLA, the claimant obtains a report on condition and prognosis within 7–49 days of disclosure of records and/or the admission of liability if disclosure is not required or has been obtained at stage 2. Instruction will also be joint and will follow pro forma instructions, to which the parties can add within seven days of disclosure/the admission. The report will be paid for by the NHSLA at a fixed rate which can be varied by agreement in exceptional circumstances. The claimant will arrange a physical examination if required. The expert sends the report to both parties. Within 14 days of receipt: — The claimant sends scanned copies of receipts, any other evidence of pecuniary losses and an offer to settle; — The NHSLA makes an interim payment of £1,000 for general damages. If a larger interim is required, the claimant must specify the amount requested and the reason for the request when making their offer. The NHSLA has 14 days to either accept the claimant’s offer of settlement or to put forward a counter-offer. If a counter-offer is made that will include a response to any request for an increased interim payment. The parties have a further 14 days to allow for negotiation and settlement which can be varied by agreement. The NHSLA’s counter-offer will address any outstanding request for a non-financial outcome. If the claim settles, the NHSLA agrees to pay the claimant stage 3 fixed costs plus a set success fee where a CFA is in place. If settlement is not achieved, the NHSLA will pay stage 3 fixed costs with no success fee and the case proceeds to stage 4.
Stage 4—Arbitration If the claim fails to settle at Stage 3 the claimant notifies an intention to proceed to Stage 4 and proposes three alternative independent Counsel from an agreed list having checked availability. The NHSLA selects one within seven days and instructs them on a joint basis to consider the papers for a fixed fee and make a finding on quantum within 14 days of receipt of instructions. Both parties agree that this decision will be binding as a cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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condition of entering Stage 4. The papers will include all documents submitted through the scheme except for offers.
It is assumed that all offers are withdrawn at the point at which the claim enters Stage 4. If the claimant beats the NHSLA’s final offer stage 4 fixed costs become payable together with a success fee. If the claimant equals or fails to beat the NHSLA’s final offer, stage 3 fixed costs alone are due (and have been paid) and no success fee is payable.
No costs are recoverable at any stage by the NHSLA. February 2011 NHSLA SMALL CLAIMS SCHEME
STAGE 1 No fica on
7 Days
Acknowledgement
28 Days Liability Response STAGE 2 Expert Report STAGE 3 Expert Report
42 Days Disclosure
Liability Denied: 7 Days Agendas / Instruc ons Claim comes out of Scheme
42 DaysReport to Par es 14 Days Claimant's Offer & NHSLA’s Interim Payment 14 Days 14 Days
Liability Admi ed; Liability Response NHSLA's Offer Stage 3 Fixed Costs
14 Days
Se lement Further Nego a on
Stage 4 Arbitra on
7 Days Binding Award Selection of Counsel 14 Days cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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PAYMENTS MADE BY NHSLA IN RESPECT OF NEGLIGENCE CLAIMS AGAINST THE NHS CNST ELS Ex-RHA Total Clinical £'000 £'000 £'000 £'000 2009–10 Damages 446,228 109,667 775 556,670 Claimant 150,914 18,024 117 169,055 Defence 53,831 7,373 62 61,266 Total 650,973 135,064 954 786,991
2008–09 Damages 431,814 123,123 3,560 558,497 Claimant 129,772 19,310 370 149,452 Defence 52,756 8,373 149 61,277 Total 614,342 150,805 4,078 769,226
2007–08 Damages 322,196 137,974 3,661 463,831 Claimant 90,327 24,466 1,606 116,399 Defence 43,778 9,123 194 53,095 Total 456,301 171,562 5,462 633,325
2006–07 Damages 302,663 124,646 1,150 428,460 Claimant 78,353 18,438 399 97,190 Defence 43,334 10,162 244 53,740 Total 424,351 153,246 1,794 579,390
2005–06 Damages 265,183 136,841 7,254 409,278 Claimant 75,060 19,007 176 94,243 Defence 44,146 12,355 286 56,787 Total 384,389 168,203 7,717 560,308
Written evidence from National PALS Network (CAL 15) 1. WhoWeAre National PALS Network is a registered charity and a not-for-profit company that aims to ensure that people have ready access to high quality PALS. Working together, and with the support of others, NPN strives to: — Empower and support colleagues throughout the service to deliver high quality, accessible and consistent services for patients, carers and the public. — Raise the profile of PALS and promote the service effectively. — Act as a focal point for stakeholder involvement and a national voice for PALS. — Provide leadership and influence policy and public debate. NPN presently has around 130 members in trusts across England who pay an annual subscription for their membership. The NPN maintains the PALS Online website, www.pals.nhs.uk.
2. Making Experiences Count—Complaints Reform 2007–09 2.1 The NPN played an active role in the Making Experiences Count complaints reform process over a two year period prior to the implementation of the current complaints Regulations in April 2009. We based our response to the consultation on the Department of Health definition of a complaint— “a generic term for any sort of complaint, raised by people using services. A complaint can be defined as ‘an expression of discontent’ … as well as being an expression of discontent, a response is require,” We argued that PALS have considerable experience on a day-to-day basis of listening and responding to people’s concerns and complaints as part of a wider customer-care role within the NHS in England. 2.2 We argued with a degree of success that the intended move away from the rigid, process-driven approach to complaints handling, so prevalent within the NHS at the time, was a positive and progressive one and that PALS staff had considerable experience in addressing concerns in a person-centred, outcome-focused manner. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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2.3 The Network urged the Department of Health to build on the role played by PALS in complaints resolution and the fact that many of the methods for early local resolution advocated in their proposals were those already employed by PALS workers. For example: — Complainants being enabled to talk directly to responsible service managers. — Active engagement in agreeing a resolution. — Transparency. — Agreeing a plan with the person making the complaint about how it will be tackled and when. — Flexibility in approach. — Early involvement of senior managers if appropriate. — Face-to-face meetings at an early stage to promote understanding of the issues. We also favoured a single local access point for complainants and noted that some trusts had already merged the resources allocated to PALS with what were often known as “formal” complaints departments to form new, integrated teams capable of a person-centred ethos and flexible and proportionate responses to complainants. We also favoured the rationalisation of data collection, and joint reporting to both internal and external agencies. 2.4 We recommended that the Department worked with NPN and other stakeholders towards the development of a clear pathway and a single, national protocol on complaints handling to “provide clear direction to trusts and social care organisations, their staff and the public.” We said that ‘the successful implementation of these ambitious reforms should be supported by adequate resources made available from the centre to publicize the new arrangements.’ Further details of our submission are available from: http://www.pals.nhs.uk/cmsContentView.aspx?ItemId=1856
3. Concerns Raised with the Department of Health and the Health Service Ombudsman 3.1 In May 2009, following the implementation of the new Regulations, we wrote to both the Secretary of State for Health and the Health Service Ombudsman expressing our deep concern that: “since the new regulations came into force at the beginning of April it has already become very clear that individual NHS trusts are interpreting them in widely different ways. “In particular, we are deeply concerned that the interpretation of what constitutes a complaint under the regulations is the subject of confusion and considerable variation. “This is not a technical issue but at the core of how trusts respond to concerned patients and relatives. The regulations require actions to be taken, records to be kept and data to be published, however, it is clear that what constitutes a complaint in trust ‘A’ may be described as a concern in trust ‘B’ and dealt with outside of the regulations. Not only is this bringing inconsistency to complaints handling but has the undoubted potential of the under-reporting of complaints.” 3.2 We went on to say: “In 2002, under the previous regulations, the PALS implementation resource pack published by the Department of Health advised: “Clearly, close collaboration between PALS and the Trust Complaints Department is essential to ensure a coherent and seamless approach to resolving clients concerns. However, there should be clear differentiation of the roles of PALS and Complaints Departments. PALS will not investigate complaints and their role is clearly to inform and support people to access the complaints procedure when requested.” On the same page of this document PALS were also advised that: “Contacts with PALS may initially frame their concern in the form of a complaint but the PALS staff should seek to identify if the concern can be dealt with informally through PALS. In all cases the choice of action should be agreed with the person raising the concern or issue.” “For PALS and Complaints Department staff this division of role was reasonably clear cut. It enabled people who were pursuing concerns to distinguish between very different approaches for addressing their issues and make a choice between the PALS approach and the formal investigation. Generally speaking, if complainants came to PALS with serious allegations against the trust, they would be strongly advised to make their complaint through the formal process and referred to ICAS for independent support in doing so. “The new regulations have effectively dispensed with this divide. Instead of a rigid process of internal investigation followed by a formal response, the new regulations require that: “the responsible body must offer to discuss with the complainant, at a time to be agreed with the complainant, the manner in which the complaint is to be handled.” cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3.3 Both the DH and Ombudsman agreed with us about the issues that we raised. In a letter to NPN, Ann Abraham said: “Your fundamental concern focuses on the confusion as to what constitutes a complaint—and the inconsistency in recording complaints data as a consequence. You cite examples in your letter of some trusts excluding all PALS cases from complaints data, whilst other Trusts include PALS data if the matter has not been resolved in one working day. The different practice means that PALS’ contribution is not fully recognised and, moreover, that the value of NHS complaints data in general (and the impact on learning lessons from this) is significantly undermined. In your view, a rigid demarcation between the work undertaken by PALS and by complaints managers is not appropriate, particularly as the focus of the new approach is dealing with complaints in a flexible, responsive, and customer-focused way. I agree with you. It is essential that the Complaints Regulations are applied consistently across all NHS and social care organisations and that the recording of complaints is equally clear and consistent across the board. I believe that Regulation 8 is quite explicit … it is clear that if PALS have been unable to satisfy a service users dissatisfaction by the end of the next working day, then it must be recorded as a complaint for the purposes of these Regulations.” The letter goes on to say that: “The Department agrees with me that we need to resolve this issue as quickly as possible … I would like to thank you again for sharing your concerns with me and I hope you will find my response helpful.” Further details of this correspondence and the responses received can be viewed at: http://www.pals.nhs.uk/CmsContentView.aspx?ItemId=2013
4. Increased Number of Complaints We are of the view that the increased number of NHS complaints is in part due to the fact that many trusts more fully recognise the PALS role as a result of the reform. Issues that might in the past have been categorised as a concern or “informal complaint” are subsequently being included in complaints data, in line with Regulation 8 and the Ombudsman’s response to NPN.
5. Effectiveness of Regulations We believe that the current Regulations represent an improvement on the processes they replaced; however, we also take the view that there is more that can be done to make best use of limited resources, bring consistency to categorisation, and drive up standards with regard to acting on the learning that should flow from listening and responding effectively. One feature of the Regulations is that they strongly infer that every complaint requires an “investigation”. We feel this is a poor choice of words as it can be construed that only those complaints that involve the appointment of an investigating officer are covered by the Regulations whereas both the Ombudsman and DH contradict this in their correspondence with us and in the DH’s clarification notice of January 2010, see below. Further work should be carried out to ensure that all complaints that take beyond two working days to resolve—no matter how they are resolved—are covered by the Regulations. This remains a great source of confusion and contention in many NHS trusts at present.
6. The Role of PALS As argued above, we do not believe that PALS is simply a “gateway to the complaints system” but an integral part of it. If organisations only categorise issues as complaints because a ‘formal’ investigation has been carried out by an investigating officer or complaints manager they are seriously under-counting complaints and undervaluing other means of resolving complaints, as made clear by both the Ombudsman and the DH. As the Department said in their clarification notice on the topic in January 2010, Gateway reference 13508: “The legislation makes clear that all NHS and adult social care complaints, however handled within an organisation, need to be appropriately recorded—not least because complainants must be advised of the right to approach the relevant Ombudsman if not satisfied with the outcome locally. Even an oral complaint being handled by PALS, that is not resolved to the complainant’s satisfaction by the next working day should therefore be recorded as a complaint, under regulation 8(1)(c). Regulation 8(1)(c) does not apply to written or emailed complaints, which should all be recorded, irrespective of the time taken to resolve them. PALS and complaints managers have considerable experience in dealing with a wide range of issues, and the Department of Health would be reluctant to issue specific guidance on how all these issues should be categorised. We expect PALS (and others) to apply common sense and to use their judgment in deciding whether they are dealing with a complaint or not. However, it is quite clear that in terms of handling a complaint, the LASS & NHS Complaints (England) Regulations 2009 cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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must be applied. The regulations lay down the framework within which all NHS and adult social services organisations have to operate. It does not matter whether a complaint is addressed to PALS, to the complaints manager, or to a front-line member of staff. It is as unacceptable to assume that PALS deal only with information, clarification and concerns, as it is to assume that only complaints managers receive complaints.” See http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_ 111619.pdf See also the Care Quality Commission’s advice on their website: “Making a complaint can feel like rather a daunting process, but there is help available. The Patient Advice and Liaison Services (PALS): There is a PALS in every NHS trust and they can provide further information and discuss options with you about how your complaint can be resolved. Some complaints can be taken up by PALS on your behalf and resolved to your satisfaction.” Link: http://www.cqc.org.uk/contactus/howtoraiseaconcernorcomplaint/complainaboutthenhs.cfm
7. The Future Role of HealthWatch We believe that the intended roles for local HealthWatch have the potential to be more successful than the present LINks arrangements. We would urge that the DH and the Care Quality Commission ensure that they collaborate closely with the NPN, the National Association of LINks Members (NALM) and current ICAS providers with regard to the complaints-related functions of HealthWatch. All of these organisations have considerable expertise to offer and must be enabled to fully engage in the transformation process in order that vital learning and knowledge is successfully assimilated as a result.
8. Data Collection We believe substantial work needs to be carried out in order to: — Provide a clear definition of what constitutes a complaint under the Regulations. — Bring consistency to data collection. — Standardise categorisation and data sets. — Detect local, regional and national trends from complaints reporting. — Share the learning from complaints resolution. — Establish and share best practice. — Cultivate the professional development of customer care and complaints resolution staff. The National PALS Network is an organisation of modest resources but contains within it a formidable amount of experience and knowledge. Our members are keen to contribute to initiatives which improve people’s experiences of health and social services and the responsiveness of organisations to truly listen to service users, interact effectively with clients, and improve services and as a result. We would welcome an opportunity to provide further evidence to the Committee if desirable. December 2010
Written evidence from the Law Society of England and Wales (CAL 18) Litigation The cost of litigation against the NHS 1. The Law Society welcomes the opportunity to give evidence to this inquiry. While the Society fully appreciates the potential cost to the public purse when litigation is pursued against the NHS it is also in the public interest that access to justice is maintained for all those injured as a result of a medical accident caused by the avoidable negligence of others. The Law Society believes that if there is a victim of someone else’s wrong doing who has suffered injury or damage recognised by civil law then that person must have the right in modern society to seek compensation. 2. Whilst costs paid to claimant solicitors in clinical negligence claims can be high and might appear to be disproportionate on some occasions, these cases are, by their very nature, more complex than other personal injury claims and the investigative work undertaken in order to assess the merits of a claim are significant, even where the claim has a relatively low value. 3. Solicitors’ fees are only a proportion of the costs which are paid out by the National Health Service Litigation Authority NHSLA). A significant proportion of those costs are paid in respect of experts’ fees (usually for medical reports) and court fees which can, in lower value cases, be disproportionate to the value of the claim. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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4. The costs of litigation can be reduced by earlier resolution of complaints and settlement of claims and there are many statistics which can substantiate this. 5. Only a very small proportion of those who suffer an adverse incident in the NHS actually proceed with a legal claim in any event. The Chief Medical Officer estimated that in 2003 850,000 hospital admissions led to adverse incidents.7 However, NHSLA statistics show conversely that less than 1% of such incidents actually result in claims.8
Reasons for the inflation of litigation costs in recent years 6. The Law Society does however accept that costs paid overall in respect of clinical negligence claims have risen. There are several possible reasons for this such as: — Continuing failure to admit liability in valid claims at the earliest possible stage. — Delays in dealing with the defence of claims. — Delays brought about by insufficient Court resources. — Increases in solicitors’ guideline hourly rates based upon inflation. — Increases in Court fees. — Process requirements (eg compliance with procedural rules). — The trend of increasing numbers of claims year on year probably due to consumer awareness and the activities of claims management companies. — The complexity of clinical negligence claims which warrant the application of 100% success fees in some cases. — High ATE insurance premiums (which may appear disproportionate to damages) due to complexity and risk. 7. Delay in dealing with claims, including delays caused by insufficient court resources, is one of the major factors which leads to increased costs for both claimants and defendants. Figures produced by the NHSLA9 for 2008–09 and 2009–10 show that the average period between notification and resolution of a claim was 1.6 and 1.5 years respectively. Reducing the time taken to resolve a claim could significantly reduce outlay in respect of legal costs. The Society understands that there is a frequent tendency on the part of the NHSLA to fully contest a claim only to attempt a settlement a few weeks before the trial when the majority of legal costs have been incurred. 8. The NHSLA is very critical of the disproportionately high costs of claimant solicitors compared to defendant solicitors. There are a number of reasons for this but the main ones are: (a) The NHSLA is able to negotiate much lower rates with panel solicitors who are effectively guaranteed bulk work which remunerates them whether they win or lose. (b) In order to provide access to justice to potential victims it was Government policy on the introduction of success fees that successful claims would reimburse claimant solicitors to an extent that would compensate for the costs of the unsuccessful claims. Prior to this, in unsuccessful cases, claimant solicitors would either be paid by the client or from public funds. A significant proportion of clinical negligence claims do not proceed past the investigation stage, are discontinued post issue but pre trial or are unsuccessful at trial. Statistics produced by the NHSLA10 show that in 2009–10 there were 6,652 clinical negligence claims received but that 2,653 claims (ie 40%) were closed without any damages being paid. (c) The Civil Procedure rules require claimant solicitors to undertake exhaustive investigation prior to formal notification of a claim in accordance with the clinical negligence pre action protocol. Consequently, considerable costs can be incurred before a defendant is even given the opportunity to consider liability. The Society has argued for some time that simplifying the process will reduce costs. (d) The NHSLA routinely do not instruct external panel solicitors until after the issue of court proceedings. The cases are often handled in-house at the NHSLA. Comparison between claimant and defendant external lawyers’ cost is therefore not comparing “like with like”. 9. The cost of ATE premiums is a major source of concern but particularly in clinical negligence claims due to their complexity and associated risk. There is also a lack of transparency in how such premiums are calculated and the Law Society considers that the Government should conduct an inquiry into how ATE premiums are calculated and whether or not they accurately represent risk. We also consider that it should be mandatory for ATE premiums to be staged as this will provide an incentive for earlier settlement of claims which will reduce costs. 7 DoH publication—Making Amends—A report by the Chief Medical Officer 2003. 8 NHSLA Annual Report and Accounts—2010. 9 NHSLA Annual Report and Accounts—2010. 10 NHSLA Factsheet 2: financial information—June 2010. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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The impact of Conditional Fee Agreements on litigation against the NHS 10. There can be no doubt that conditional fee agreements (CFAs) have had a significant impact on all litigation including clinical negligence claims since 2000. This was when the concept of recoverability of success fees and ATE premiums from unsuccessful defendants was introduced. That was as a result of Government policy at that time because of the removal of public funding from most claims, although this did not include clinical negligence claims. However, some solicitors have reported that whilst clinical negligence remains within scope for legal aid, the Legal Services Commission (LSC) sometimes limit this to the investigative stages of the claim. Should there be merits in continuing with a claim the LSC brings pressure to bear on the practitioner to enter into a conditional fee agreement with the client. There can also be occasions where the costs ratio which is stipulated by the LSC is exceeded due to a tendency for the NHSLA to settle claims at such a late stage of the proceedings (frequently only a few weeks before trial). When this happens the LSC withdraws funding and the solicitor is forced to continue with the claim on a CFA. 11. Financial eligibility for public funding has fallen considerably over the last decade leaving fewer people able to access public funding and hence using CFAs to obtain access to justice. 12. The availability of CFAs has increased access to justice for many consumers who do not qualify for legal aid and who could never afford to pay on a private basis. In CFA cases the solicitor also has a vested interest in the outcome of the case and this reduces the number of potentially frivolous claims as no solicitor will take on a case if there is very little prospect of receiving payment. 13. One positive impact of CFAs in so far as the NHS is concerned is that if a claim is unsuccessful, the NHS will recover its legal costs under the terms of the claimant’s insurance policy. This is not possible in publicly funded cases in normal circumstances. 14. A factor which cannot be ignored is the effect of the activities of claims management companies (CMCs) who have no vested interest in a claim. The income of CMCs is derived from referral fees which are paid on acceptance of a referred case whether the claim is successful or not. They add nothing to the process and it is current Law Society policy that the payment of referral fees for injury claims (including clinical negligence) should be prohibited by the Legal Services Board across the board.
The effect of litigation on the development of an open reporting and learning culture in the NHS 15. An open reporting and learning culture is an ideal which is unlikely to be fully achieved in an environment where admitting blame at the outset is still discouraged. There can be no doubt that an indication of an “adverse clinical incident” by, or on behalf of, a patient is assumed to be a potential case for litigation by a Trust. This is supported by the numerous guidelines issued by the NHSLA which tend to imply an assumption that all complaints may end in litigation. The clinical negligence reporting guidelines require that NHSLA authorisation is required before any admissions may be made and/or monetary compensation offered and that in the absence of such authorisation the NHSLA will not reimburse the compensation awarded or any costs incurred by the Trust. 16. However, many patients who make a complaint about their treatment are merely looking for an explanation as to what went wrong and why and litigation is not even considered at that stage. The CMO found that only 11% of those who had suffered a medical injury wanted financial compensation.11 Even where an apology is given there can be occasions where a patient has not received an acceptable explanation or does not consider that a Trust will learn from the incident and that nothing will change. Many others who may have a valid claim will also view litigation as a last resort but find themselves with no alternative due to a failure to accept that a mistake occurred which should not have happened and no satisfactory explanation has been received. 17. Consequently there is much scope for development, more openness and a change of attitudes on both sides which could lead to better patient satisfaction with how the initial stages of a complaint or claim is handled and the speed at which that is done as delay not only causes frustration it can also lead to mistrust of the process. 18. We would re-iterate that the tortious system in this country holds people to account for their civil wrongs against others. Claims based on negligence expose faults and give an opportunity for learning from mistakes. We should not, therefore, brush aside litigation based on fears that this will detrimentally affect the attitudes of NHS staff towards open reporting and learning.
The Government’s intentions regarding the implementation of the NHS Redress Act 2006 19. In its recent consultation paper12 the Government states that the “Department of Health is currently considering how best to reform the approach to clinical negligence, in particular for low value claims” and that “the NHS Redress Act 2006 missed an opportunity to improve fundamentally the way that clinical 11 DoH publication—Making Amends—A report by the Chief Medical Officer 2003. 12 Proposals for Reform of Civil Litigation Costs and Funding—Implementation of Lord Justice Jackson’s Recommendations— Consultation paper CP 13/10—November 2010. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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negligence claims are handled.” The Government considers that “it should have focused on improving the fact- finding phase prior to pursuit of a claim to facilitate faster resolution of claims and leaving it to the parties concerned, or ultimately the courts, to determine liability and quantum in cases not resolved by the fact- finding.”
20.The key policy drivers for the reforms proposed by the Act were:13 (i) the current system was perceived to be complex and slow; (ii) the current system is costly both in terms of legal fees and diverting clinical staff from clinical care; there is a negative effect on NHS staff morale and on public confidence; (iii) patients are dissatisfied with the lack of explanations and apologies or reassurance that action has been taken to prevent the same incident happening to another patient; and (iv) the system is said to encourage defensiveness and secrecy in the NHS, which stands in the way of learning and improvement in the health service.
21. Improving the fact finding phase prior to pursuit of a claim will only improve the speed of dealing with claims and obviate the need for litigation in more cases if there is also a willingness to admit liability at the earliest possible stage after conclusion of the fact finding investigation in those case where negligence has been identified.
22. Our additional concerns about the Redress Scheme which was proposed originally were that it severely limited the right of injured parties to be represented by a solicitor and the reimbursement of legal costs. It also lacked independence in evidence gathering and decision making.
The possible benefits of a statutory right to compensation for “treatment injury” from an independent fund, without the need to prove negligence, as required under tort law
23. According to the report of a review of clinical negligence by the Chief Medical Officer in 200314 critics of no fault compensation schemes argue that: — overall costs will be higher than under a tort system; — it will open the floodgates to compensation payments and fuel a compensation culture; — disputes about causation remain, even if “fault” is removed; — disputes about the amount of damages remain, unless there is a tariff based approach; — it is difficult to distinguish injury from the natural progression of the disease in some cases; — explanations and apologies are not necessarily provided in a system which focuses on financial recompense alone; and — a no fault scheme, in itself, does not improve accountability or ensure learning from adverse events.
24. Whereas the CMO stated that arguments in favour of such a scheme were: — fairness; — speedier resolution of cases; — lower administrative and legal costs than court action; — increased certainty for claimants on the circumstances in which compensation is payable and increased consistency between claimants; — reduced tension between clinicians and claimants; and — greater willingness by clinicians to report errors and adverse events.
25. The review specifically considered the option of a comprehensive no-fault compensation system but rejected such a scheme on the basis that: — a true “no-fault” scheme would lead to a potentially huge increase in claims and overall costs would be far higher than under the present tort system; — to be affordable, compensation would need to be set at substantially lower level than current tort awards and would not necessarily meet the needs of the harmed patient; — it would be difficult to distinguish harm to a patient from the natural progression of a disease; and — no-fault schemes, of themselves, do not improve processes for learning from error or reduction of harm to patients.
26. In our view this reasoning remains powerful and persuasive. 13 DoH publication—NHS Redress—Statement of Policy 2006. 14 DoH publication—Making Amends—A report by the Chief Medical Officer 2003. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Encouraging the use of mediation before litigation is initiated 27. The Law Society welcomes and supports encouragement to use all attempts to settle a case using alternative dispute resolution techniques including round table discussions which can be very successful as well as cost effective. 28. Mediation can be highly effective in clinical negligence disputes and should be seriously considered for cases that fall outside the proposed NHS redress scheme. As well as achieving a high rate of settlement it can help to clarify issues in dispute, provide the opportunity for an explanation or apology and other non-financial remedies that might be important to patients. However, in order to ensure mediation or any ADR process is put to best use, the parties to the dispute should have access to legal advice and representation throughout the process. 29. Furthermore, mediation depends upon the willingness of both parties and it is not suitable in all cases. A real problem is determining when mediation is most effective. Prior to the commencement of litigation, both sides may be reluctant to participate fully because of a lack of exchange of evidence (statements, expert reports, joint meetings all happen much later in the process). Mediation later on will be more informed, but will save fewer costs or time. It is not easy to resolve this conundrum.
Complaints 30. The Law Society is not in a position to give any specific evidence on complaints but has some general observations can be made: — It is most likely that there is a direct link between complaints and litigation as most claims are commenced after a complaint has been made. — The total number of written complaints received by the NHS in 2008–09 was 89,139.15 — Only 73% of complaints were concluded within the resolution time limit of 25 days.16 — Clinical negligence claims received by the NHSLA in 2008–09 were 6,08817 (ie equivalent to 7% of the total number of complaints). December 2010
Written evidence from Cure the NHS (CAL 19) Summary — Cure the NHS, a group of bereaved relatives of patients who had all died in Stafford Hospital, believe the NHS acute sector is in crisis. — A “victim culture” has developed in the NHS, very clearly seen to this day at Stafford Hospital, in which staff rather than reflecting on their own performance failures, blame patients, their relatives, and campaigning groups. — The principle of “first do no harm” espoused by Florence Nightingale is absent from the NHS. — The concept of “right first time” common across the world for many decades is absent from the NHS. — The culture of care that used to characterise the NHS has been crushed by the command and control driven by health ministers and the NHS executive. — The primary concern for the NHS should be a fundamental and universal change of culture to put zero harm and right first time at the heart of everything it does. — The complaints system is therefore a secondary system. Any system for handling and resolving complaints should be simple; the NHS systems are. — It is the attitudes and behaviours of NHS staff and the staff of other bodies involved in NHS complaints that render the system not fit for purpose. Cure the NHS believes patients and relatives who complain are subjected to torture. — The precedence that medical professionals give to their protection over the needs of patients and relatives for candour contribute to rendering the system unworkable. — The precedence that hospital boards give to the reputation of the hospital as an institution over the needs of patients and relatives for candour contribute to rendering the system unworkable. — The solution with which the Health Committee can help, therefore, is not recommending systems, processes, and procedures but helping to start that fundamental change of culture amongst frontline NHS staff, managers, executives, and non-executives, that promotes the needs of patients and their relatives above all. — Cure the NHS recommend that the members of the Committee undertake their own research with their constituents before hearings start. 15 NHS—The Information Centre for health and social care—Data on Written Complaints in the NHS 2008–09—Table 1. 16 NHS—The Information Centre for health and social care—Data on Written Complaints in the NHS 2008–09—Table 2. 17 NHSLA Annual Report and Accounts—2010. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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1. NHS Acute Care is in Crisis 1.1 Cure the NHS believe the NHS acute sector is in crisis. The evidence: 1.1.1 the disaster at Stafford; 1.1.2 other significant failures over a decade starting with Bristol, then Maidstone, Stoke Mandeville, Basildon and Thurrock, Oxford Radcliffe paediatric cardiology. The lessons of Bristol have not been learned; and 1.1.3 reports from campaigners and individual campaigners across the country 1.2 Our group has maintained from its foundation in 2007 that the culture of care in the NHS has collapsed under the command and control originating in the Department of Health and transmitted through the system by the NHS executive. 1.3 At Stafford Hospital a steady stream of utterly appalling cases continues, the latest just a week before Christmas 2010. At the University Hospital of North Staffordshire in Stoke-on-Trent on 6 December 2010 an elderly lady was kept on a trolley in a corridor for a day before being admitted. How is that possible? A Cure the NHS member, one who has herself survived the most extraordinary mistreatment in Stafford Hospital, took her young daughter to the A and E at Burton-on-Trent hospital on 18 December 2010, filthy; when she told the staff she would rather take her to daughter the hospital at Derby the staff abused and threatened her. 1.4 NHS frontline staff have forgotten what they are there for. In fact a “victim culture” has developed in the NHS, very clearly seen to this day at Stafford Hospital, in which staff rather than reflecting on their own performance failures, blame patients, their relatives, and campaigning groups. 1.5 This is the same at board, executive, and management levels and it is demonstrated by the way patients themselves or their relatives and loved ones are tortured when they try to complain. Torture is the only suitable word. 1.6 Hospital boards always put protection of the hospital as an institution before individual complaints. 1.7 The evidence is that doctors and nurses usually support their superiors in this torture but when medical staff or managers do try to raise issues it is they who then undergo the torture. The treatment of “whistleblowers” by the NHS is another facet of the collapse of the culture of care. “Kiss up, kick down” as they say. 1.8 This is what Cure the NHS said at the Conservative Party conference in October this year: “150 years ago Florence Nightingale was telling her nurses that their first responsibility was to do no harm. So, why in today’s NHS is so much harm caused to patients? Surely doing no harm should be restored as the first concern? And too many staff have had to resort to whistleblowing because the NHS has a management culture that puts officialdom before patients. A culture that metes out the same aggressive response to patients and their loved ones for simply complaining about poor care. Lets agree that this culture must end, today. Only when NHS leaders welcome challenge from their frontline staff and from patients and their families, and only when they are prepared to be fully open when things go wrong, will we have an NHS that is what it should be” 1.9 Since a number of our members have covered this subject in detail in their written statements and oral evidence to the Mid Staffordshire Public Inquiry we do not set out the detail of the failures here but refer the Committee to the documents and transcripts which are all available online at http:// www.midstaffspublicinquiry.com/hearings. See Transcripts and Evidence, Week Three—Julie Bailey, Janet Robinson, Chris Dalziell, Debra Hazeldine, Jeff Guest; Week Four—Sandra Whitehouse, Marc Whitehouse, John James, June Locke, Gillian Peacham; Week Five—Dobbing, Nicola Monte, Castell Davis, Ken Lownds.
2. The Real Problem 2.1 We believe that the following points are fundamental: 2.1.1 the primary focus of all frontline staff in the NHS should be on delivering high quality care, right first time, with zero harm; 2.1.2 meeting this goal would in itself reduce complaints dramatically; 2.1.3 whatever system there is for complaining it will be useless if the attitude of NHS staff of all levels towards patients and relatives who complain is one of contempt for them; and 2.1.4 whatever legislation there is to cover complaints it will be useless if the attitude of NHS staff of all levels towards patients and relatives who complain is one of contempt for them.
3. Initial Research 3.1 Cure the NHS believes that before its first hearing in this inquiry the members of the Health Committee should carry out their own research in their own constituencies: cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3.1.1 advertise in the local press for: 3.1.1.1 all patients and relatives who have made formal complaints in the last three years to send a summary of the case and their overall experience; and 3.1.1.2 all patients and relatives who have had bad experiences in the last three years to send a summary of their experience and why they did not complain. 3.1.2 ask the hospital to submit all of their board minutes relating to complaints and the minutes of other meetings relating to complaints, their handling, their analysis, and how this material has been used to prevent further similar failures; 3.1.3 invite a sample of patients and relatives to describe this experience to them at special constituency surgery sessions; 3.1.4 invite those constituents who cannot attend to submit contributions by video; 3.1.5 analyse and summarise the findings; 3.1.6 with the rest of the Committee members work out a sample of constituents to invite to the hearings; and 3.1.7 ask MPs in neighbouring constituencies to carry out this process; in fact all MPs should carry out this exercise. 3.2 This will provide the broadest and deepest analysis of the NHS since its founding. 3.3 It will also ensure that the Committee’s work is based on real cases from patients and their relatives.
4. Represent Relatives Too 4.1 People whose loved ones live in another constituency should be represented by the MPs in their loved one’s constituency when they need a help. Failure to help in such circumstances is a major failing in the current system.
5. The Heart of the Problem 5.1 For many years if not since the inception of the NHS itself when doctors largely shaped the culture the principal cultural driver has been the recourse following serious errors to medical defence unions to protect the interest of the medical profession. 5.2 So caring, committed, skilled, experienced doctors in all the branches of the medical profession have turned from the needs of their patient and his or her relatives to their own protection. Openness, candour and honesty have been and still are, hard to find after something has gone wrong. 5.3 The medical defence unions operate only as instructed by the clinicians and the colleges who make up their client base. 5.4 The only way change can come is therefore by those clinicians’ determining that new instructions will be given to their defence unions. This instruction needs to be that first we apologise to patients and relatives and set out a full record of everything that happened. Then we will turn to the implications for our professional standing. 5.5 Hospitals have fallen into a similar position in which the needs of the Litigation Agency, Clinical Negligence Scheme for Trusts (CNST), dictate that minimal information is given to patients and their relatives after errors or poor care resulting in complaints. 5.6 In a service such as the NHS there should be very few complaints. 5.7 Clinicians can and should lead on this; it would made a dramatic change to the NHS culture. 5.8 Nurses are protected by their unions; a similar initiative is needed. 5.9 Against this background the Litigation Authority has stated: “As far as the litigation process goes, there are no barriers to giving an honest apology in good faith and an honest explanation if indeed you know [what happened] … The Litigation Authority has stated this position in a circular to the health service a number of times … ‘We don’t want anyone in the NHS to be using [the threat of litigation] as an excuse for not doing what we think is the right thing,’ says Mr Walker. (Stephen Walker, Chief Executive, NHS Litigation Authority in a Health Service Journal article 17 November 2008) “Patients and their relatives increasingly ask for detailed explanations of what led to adverse outcomes. Moreover, they frequently say that they derive some consolation from knowing that lessons have been learned for the future. In this area, too, the NHS Litigation Authority is keen to encourage both clinicians and NHS bodies to supply appropriate information whether informally, formally or through mediation.”—NHS Litigation Authority circular, 2009 cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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6. Conclusion 6.1 Any “process” for handling NHS patient and relative complaints should be straightforward and at first sight the current process and previous process are. Processes and systems are meaningless, however, if the attitudes and behaviours of the NHS staff and staff of other bodies who operate them are directly opposite to the values espoused by all of the people who design them. And this is what they are. Cure the NHS members themselves and all of the many people from the length and breadth of the UK report nothing but the most awful attitudes and treatment every step of the way. This extends from initial contacts with ward staff, then doctors, consultants, managers, executives, PALS, ICAS, PCTs, the old Healthcare Commission, Public and Health Service Ombudsman, Department of Health, and under the previous government Health Secretaries and Ministers. 6.2 It has to stop. The NHS is paid for by its patients and their relatives to serve them. Currently when things go wrong, and they do so all too frequently, it does not serve them but rather sees them as enemies. The Health Committee’s inquiry has an opportunity to change that. Please do not let it slip. December 2010
Written evidence from the Independent Complaints Advocacy Service (CAL 26) 1. Introduction 1.1 ICAS provides advocacy support to enable people to use the NHS complaints process. The service helps people know their rights, understand the standards of care, treatment and service they can expect, explore choices and express their views. The service focuses particularly on vulnerable people. 1.2 Reflecting complainants views that advocacy services should be independent of NHS structures and obtained from organizations experienced in providing high quality advocacy, the Department of Health commissions ICAS from three independent advocacy charities: The Carers’ Federation, POhWER and SEAP. This is response is submitted by these three charities who have provided ICAS since 2003. It reflects our experience of supporting over 30,000 people in the past three years to engage with the NHS complaints process, many of whom are vulnerable and rely significantly on the NHS, as demonstrated by the results of a survey conducted by one of the providers earlier this year which showed that nearly 70% of clients had a disability, over 60% had been in hospital the previous year and 100% had visited their GP.
2. Summary Increase in complaints and in demand for ICAS support 2.1 ICAS has also seen an increase (40–50%) in the number of clients seeking help to progress their complaints about health services over the past three years.
Arrangements can improve the experience of raising 2.2 In 2008 The Department of Health led a project called Making Experiences Count (MEC) which reviewed the whole complaints process and led to significant change in the regulations. Many patients were involved the process and ICAS staff were seconded to support the work. 2.3 The experience of our advocates is that early adopter Trusts, all of whom received considerable additional support to introduce the new system, have made significant improvements. Many other Trusts still lag behind and continue to frustrate people who want only to be heard and for Trusts to learn from their experiences. 2.4 The lesson is that the new system has much to commend it—but too many organisations cannot or will not implement it properly without support and oversight.
Remaining Challenges Vulnerable Groups 2.5 ICAS clients are drawn significantly from the equality groups. Many are vulnerable and distressed and their cases are complex. Their complaints experiences all too often mirror the poor care they have already endured. In these cases, ICAS often acts as “a reasonable adjustment”, to enable people from the most vulnerable groups and/or those with communication difficulties to access the complaints and redress processes which they are entitled to use.
Lack of Patient Focus 2.6 Many vulnerable people have cases that are complex and span organizations and systems. Although the reformed complaints system has smoothed out some of the fragmentation issues some still exist. Examples include continuing care and special funding reviews and the lack of continuity of advocacy support for people who are pursuing parts of their complaint through professional regulatory bodies such as the GMC and/or NMC. In our opinion these areas are ones where organizational boundaries and existing processes have been cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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given precedence over patient needs. All could easily be ironed out bringing great benefit to many people whose lives are already complicated.
Litigation and Redress 2.7 There is still a lack of imagination and empathy in the NHS’s approach to redress. Where complaints are handled well and more flexible approaches are taken to redress, litigation is far less likely—and indeed, there is much more chance of learning and reconciliation.
Professional Resistance in Provision and Commissioning Care 2.8 Medical defensiveness is still an issue that Trusts struggle to address. This is equally true in primary care—and we are concerned that GP consortia will need considerable support if complaints and patients experiences are to inform commissioning.
3. Main Response The recent rise in NHS complaints 3.1 Feedback from our clients suggests the following factors may play a role in the rise in complaints: — Media coverage of high profile health stories. — ICAS efforts to make the system accessible to clients who might not otherwise be able to raise issues. — More confidence in the complaints system. 3.2 The increase in complaints has been reflected in increased demand for ICAS support with a 40–50% increase in new cases over the period April 2006 to 31 March 2009 across all three providers. This is pleasing as in the past the client groups that we serve have sometimes been further marginalized when demand from the wider population increased. 3.3 The increase in referrals to ICAS results from of word-of-mouth recommendations and increasing capability amongst the three ICAS providers to promote the service effectively. To do this ICAS staff: — routinely meet with complaints and PALS staff; — actively seek involvement in induction and training for NHS complaints staff; — speak at health and social care conferences and events; — regularly hold stakeholder events to promote the service; and — produce publications, including an impact analysis of the work of the service which was widely circulated to relevant stakeholders last year.
Effectiveness of the new complaints system 3.4 The new complaints system can be effective. Our advocates say that those Trusts who have embraced the new complaint arrangements have achieved a number of positive outcomes: — More flexibility in the timescales for clients to raise their complaints. This is particularly helpful for people who have communications/cognitive issues and need time to assimilate information. Flexibility is also helpful when people are very distressed and are not able to fit with rigid timescales. — More attempts at early contact and discussion and at quick and early resolution, with many Trusts offering a face-to-face meeting with clients much earlier in the process. This approach results in positive resolution and faster organizational learning. It also make complainants feel more confident about using services in future. — Improvements in local resolution meetings with an increased number of clients being satisfied with the meeting and the subsequent outcomes. 3.5 However, there are also some problems in the application and coverage of the new arrangements. In particular there is inconsistency between Trusts who were involved in the early-adopter process—who are making good progress—and those that were not. The concerns that our advocates voice most consistently are: — Whilst the flexibility to “agree” timescales for responses with complainants is helpful, some NHS bodies do not apply the new legislation in the spirit intended—some always set a long time limit even for a simple complaint. — Many Trusts were slow to embrace the new complaints regulations, continuing to work to the previous regulations timeframes—and a few still do! — Complaints departments are still not well resourced and the understanding of the complaints system at senior levels is very patchy. This, and significant turnover of staff in some complaints departments, has further added to the slow implementation. Staff are often not replaced and this has led to a backlog of response letters going out to complainants. With the current upheaval in the system and the financial constraints on Trusts, this situation is unlikely to improve. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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— Resistance amongst clinical staff, especially medical staff is a considerable issue in complaints and still appears to be an area that Trusts struggle to address satisfactorily.
Equalities issues 3.6 There are still significant issues for people who fall into the equality groups and who have very significant needs. This is worrying as it is people in these groups who seek our support for the most significant and concerning complaints including: — Lack of planning to make an adjustment for specific needs. — Fragmentation and an inability to provide joined-up services. — Poor organisation of moves from one service to another. — Incomplete and inadequate record keeping. — Ignoring people or arguing with people when concerns are raised. — Leaving food, liquid and medication out of reach. — Misinterpreting pain and distress as “features” of disability. — Striking off GP lists. 3.7 Unfortunately, for these groups, the experience of navigating the complaint process all too often adds insult to injury as the case below illustrates: 3.8 Dr B is deaf and blind and suffers from severe epilepsy which results in frequent admission to hospital. Dr B has studied to PhD level, yet on virtually every admission she was treated with discourtesy and misunderstanding. She was often not told where the toilet was and she lay in wet clothing for many hours. 3.9 Dr B sought support from ICAS. When a meeting was requested by her advocate the response was “how can she have a meeting if she is registered deaf and blind?” Her advocate helped Dr B to prepare a letter of complaint which included a description of how the Trust could best communicate back. The first response from the hospital ignored this information. Eventually a meeting was arranged but the hospital wouldn’t engage an interpreter until Dr B’s advocate quoted the Disability Discrimination Act.
The effectiveness of the constituent parts of the system 3.10 A number of factors about the constituent parts of the system, including ICAS, merit comment: — Local resolution meetings are a very effective way of resolving complaints and the proportion of clients going to local resolution meetings has been steadily rising across the three providers with an overall increase of about 12% between April 2006 and March 2010. — Satisfaction with the outcome of local resolution has increased over the last four years, with over 70% of clients happy with the outcome in 2009–10 compared to 45–56% in 2006–07. This must at least in part to be due to the impact of the new complaints regulations. Examples of good practice include digitally recording local resolution meetings and providing copies to the complainant; greater thought being given to handling of meetings, with fewer adversarial and defensive encounters and a greater willingness to encourage complainants to come back if other issues occur to them after the meeting. — ICAS is proving very effective and this can be demonstrated not only in feedback from clients and stakeholders which is regularly over 90% positive, but also in relation to complaints to the Health Service Ombudsman. The Ombudsman reports that ICAS supported cases are more likely to make it to further assessment and more likely to be investigated than non-ICAS supported cases, and the following data illustrate the point. Only about 6% of NHS complaints reach the Ombudsman each year and fewer than 0.5% are investigated. 550 of the 4000 cases that have made it to further assessment by the Ombudsman this year have ICAS support. Only 240 complaints have been accepted for investigation this year and 70 of the complaints currently under investigation have ICAS support. The relative performance of ICAS supported cases compared with non-ICAS cases is especially remarkable considering that ICAS is resourced to support only about 10% of all NHS complaints. — Some groups of people—and particularly vulnerable people whose complaints are often complex— still experience fragmentation in the complaints process. For example, if a complaint about a doctor moves outside the Trust to the GMC, and even if the complainant has been receiving support from ICAS and would like to continue that support, ICAS is unable to carry on supporting the client at the very time when they most need it as the NHS complaints system does not cover professional regulators. A similar issue arises with regard to the “review” arrangements in continuing care and in cases where special funding is being sought. Our clients say that their purpose in seeking a review is, in effect, to make a complaint and they find the distinction between the review process and the complaints process confusing. Many say that they only understood the system when they had an advocate and that they cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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might have made different decisions had they had ICAS support for the review process instead of having to wait to gain access to ICAS through the complaints process. Although there is some leeway for ICAS to support cases that have a social care component, the majority of the case has to be about health care. Clients cannot always separate out the constituent parts of their complaint especially if relates to mental health aftercare or a complex post discharge arrangement for an older person. It would be helpful just to be able to support people whose cases span both health and social care without having to worry about the balance of the complaint. These examples demonstrate that there is still a tendency to design processes around organisational and system boundaries rather than with the patient’s needs at heart. Extending ICAS support to the review stages of continuing care and special funding cases, to health and social care cases and to the professional regulatory processes would not involve a great deal of work and be greatly appreciated by clients who are already struggling with very difficult issues and distressing situations. ICAS providers are prepared to review how this could be achieved in the existing cost envelope. It would be helpful if the Select Committee could review these matters.
The role of the patient advice and liaison service 3.11 Since the new regulations were introduced, a number of Trusts have merged their PALS and complaints teams to form a complete “customer care” function which we believe is an improvement on the old model. 3.12 Unfortunately, however, PALS fall outside the statutory framework and therefore not all Trusts have PALS. The level of resourcing for this service also varies enormously. Consequently, PALS is not a consistent gateway to the complaints system. Also, our clients report that in some Trusts despite their best efforts, PALS are not able to overcome professional resistance to resolve what might often have been relatively straightforward cases.
The Government’s plans for future complaints handling 3.13 We submitted considerable evidence about the value of the ICAS service in response to the consultation on the White Paper. Our responses are on our websites and we urge the committee to review them. There are links at the end of this report. 3.14 We feel that our views and those of others, like the Ombudsman, who have direct experience of ICAS, were listened to and we are pleased that in the Command Paper the value of advocacy—particularly for vulnerable groups—is acknowledged as is the need for advocacy to be independent of structures that might be seen as part of the public sector. 3.15 We are pleased that local authorities who are already experienced commissioners, have been given responsibility for commissioning advocacy and that the ICAS contract has been extended for two years to allow proper planning of future arrangements. We hope this will give local authorities time to consider advocacy “in the round”, reflecting the wishes of many clients who find the fragmentation of existing statutory advocacy arrangements a further burden in what are already very complex lives. 3.16 We hope that there will be a standard commissioning model to help reduce the geographical variations in advocacy that many clients experience.
How data from complaints handling will feed into the new commissioning arrangements 3.17 Complaints are difficult to categorise and the NHS does not have a strong track record in working with experiential evidence. We suggest that research be commissioned to identify practical ways of capturing key issues from complaints in order to inform local service improvement and commissioning in general. 3.18 In the meantime much can be learnt from consistent analysis and open discussion of simple measures such as: — Feedback from complainants about the process — Numbers of complaints received per specialty, clinical area and per clinical team using: — the current classification of issues. — demography of complainants — number of complaints resolved informally and those that “went the distance”. 3.19 We are worried about the extent to which GP Consortia will engage effectively with the complaints and patients’ experience agenda. Many of our clients do not regard GPs as speaking for them nor do they feel that GPs universally understand their needs, and advocates often find considerable defensiveness amongst GP practices with regard to complaints. We feel therefore that GP consortia will need considerable support and scrutiny if complaints and the patient experience—especially the experience of vulnerable people—is to be a genuine feature of future commissioning. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Litigation and redress 3.20 We cannot offer a great deal of comment on litigation issues as we do not support clients through legal processes. However, most clients do not want to pursue litigation and do not seek compensation. What they want is to be listened to, believed, have an explanation and acknowledgement of hurt and an apology. They want others not to have the same experience. 3.21 We have seen simple, thoughtful gestures of redress initiate healing and reconciliation where none seemed possible. 3.22 In our view therefore, a more humane, compassionate and imaginative NHS and complaints system could go a long way to reduce litigation costs.
4. Conclusion 4.1 An increase in the numbers of complaints should not necessarily be seen as a “bad thing”; it may reflect a greater trust in the system—and we believe that there is reason for some optimism. However, consistency between Trusts is still a problem as is attitude amongst medical staff in particular. Resources for complaints handling are still very limited and people in the equality groups still face too many difficulties and too many system and organizational boundaries. We are also concerned about the commitment and knowledge amongst GP Consortia to listen to patients learn from patient experiences rather than assuming that GPs can represent patient views. 4.2 However, the changes being introduced by the new government emphasize an equalizing of power between patients and professionals and commit to support for the most vulnerable. They represent a new opportunity for ensuring that more is learnt from complaints and that complaints handling systems are more responsive to those they are there to serve. We hope that in making this submission to the Select Committee we can help ensure that the new opportunities translate into better services and outcomes for patients. December 2010
Supplementary written evidence from Independent Complaints Advocacy Service (CAL 26A) Executive Summary Key facts about ICAS — ICAS, provided by three independent charities, is the biggest NHS complaints handling service in England. — During 2009–10, when there were some 101,000 complaints about the NHS, ICAS handled over 75,000 enquiries about the NHS complaints process, over 12,000 requests for self-help packs and 14,721 cases requiring direct advocacy support. — ICAS dealt with 15 times more enquiries about the NHS complaints system than other organisations who publish their results. — Advocacy services, including ICAS, are one of the few services genuinely designed for service users by service users—and service user views informed the Department of Health’s specification for ICAS. — Positive feedback from ICAS clients has improved year on year and now stands at 90%.
Reasons for concern The above shows that ICAS has much more experience of complaints handling than any other comparable organisation. The Select Committee’s voice will be important in the way that complaints’ handling is taken forward. The three ICAS providers and our clients are concerned that the views and experiences of the considerable body of ICAS service users was not reflected in the Select Committee’s oral hearings about the NHS complaints and litigation system and that the Select Committee did not receive an accurate picture of the scale and nature of ICAS services. In addition to the key facts and figures above, below is a brief overview of how ICAS works and a summary of the views expressed by our clients through surveys, feedback forms and workshops. The attached document provides more detail.
How ICAS works Advocacy services help clients to obtain information, including medico-legal information, and consider whether they feel the NHS has addressed their complaint adequately. ICAS refers to other services when it is considered they are better able to respond to a client's needs. ICAS providers offer a full range of services: answering simple queries, providing self-help packs supported with advice, as well as providing direct advocacy to disabled people, people with language difficulties or who cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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feel unequal to the task of complaining alone. All ICAS staff are fully qualified and ICAS organisations have all achieved recognised standards for the provision of services.
Clients views about the current complaints system Many service users were involved in the design of the complaints system introduced in 2009. Most clients feel that the current system works well, but could be improved in a few areas. They think that that the review that was planned when the system was introduced should be brought forward so that good practice and lessons from implementation can be spread more widely. The areas where improvement is needed are as follows: — All parts of the NHS, and in particular GPs’ surgeries, should comply with the requirement to notify complainants about the availability of ICAS as soon as a complaint arises. — The NHS should comply with the requirement to record as a complaint any concern that remains unresolved after 24 hours. — The NHS should comply with the requirement to ensure that complaints are properly logged and complainants are offered access to ICAS support throughout the complaints process. — The training intended for all complaints managers following the implementation of the regulations in 2009 should be completed as part of plans for a more customer focussed NHS. — Clients do not want further attempts at local independent resolution or for advocacy to be part of such a process as suggested in some evidence. This has been tried and failed. However, the possibility of earlier referral to the Ombudsman where complaints become intractable locally should be explored and clearer explanation of the Ombudsman's processes would be helpful. — Complainants with complex needs often also have complex complaints that span several complaints and regulatory systems including social care, continuing care, the information commissioner and the professional regulators. Complainants would like to have continuous advocacy support throughout the process. We suggest that where the Department of Health can make advocacy support available as of right—eg in social care and continuing care, it should do so. Where other systems are involved—such as the General Medical Council or the Nursing and Midwifery Council—we suggest that they be asked to agree to funding ad hoc advocacy of the client’s choice to enable continuity of support.
Clients views about learning from complaints Whilst learning from complaints is important, the information gleaned from complaints can only ever be part of the picture of NHS performance. The current emphasis on complaints brought about by high profile cases and reports has had two very worrying effects: — Clients tell us that they feel that patients are increasingly responsible for monitoring the NHS and reporting failures. — A growing number of people are contacting ICAS, not because they have a complaint, but because they are worried about forthcoming treatment in the light of adverse publicity. Complainants want a restorative, personal approach to complaints handling. Whilst they hope that similar things will not happen to others, they do not want to be responsible for monitoring the NHS and ensuring that improvements happen—they want those responsible for upholding standards to do their job so that patients can feel safe. Complainants feel that until there are better systems for the collection and use of complaints data, care is needed when publishing information about complaints to avoid unjustified anxiety for patients. Until broader complaints classification systems and analyses are improved clients feel that there is still much that could be done at a local level where data from complaints can be interpreted more unambiguously. The new HealthWatch arrangements and the planned DH review of ICAS reporting arrangements provide an opportunity to do this. For example: — There is now an opportunity for improved data use and for enabling data to be shared with LINks and this is being pursued through Pathfinder initiatives. — HealthWatch organisations could play a key role going forward in promoting complaints advocacy, checking that complaints regulations are implemented as intended and ensuring that complaints data is reported upon publicly along with resulting improvements.
Clients views about complaints data and commissioning of NHS services Many of our clients, especially those with disabilities and complex communications needs, feel that GPs do not understand their needs. They are worried that GP Consortia will not be sufficiently interested or knowledgeable to commission effectively for them. Our clients feel that it will be particularly important for HealthWatch organisations and Health and Wellbeing Boards to ensure that GP consortia take account of patient views, especially the views of people with complex needs, in their commissioning decisions. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Clients views about commissioning complaints advocacy We and our clients are very pleased that the statutory right to complaints advocacy is to be retained going forward and that commissioning is now to be through local authorities who are very experienced commissioners. We hope that as has happened in other statutory advocacy services commissioned through local authorities, there will be a standard advocacy specification, drawing on ICAS and client experience. This will help avoid a postcode lottery in the standards of services available to vulnerable people.
Clients views about performance reporting Both local and National HealthWatch organisations could produce an annual report on complaints handling, with national HealthWatch bringing together an overview using local reports.
Recommendations and Opportunities Our recommendations and our ideas about opportunities for improvement in the complaints handling system going forward are summarised below.
Recommendations Recommendation 1: allow the new complaints system to bed in, but bring forward the planned DH review, using lessons from implementation so far to strengthen complaints handling across the NHS. Recommendation 2: reinforce the requirement to record as complaints any concerns that cannot be resolved in one day. Recommendation 3: reinforce the requirement that information about Complaints Services, PALS and ICAS be displayed prominently in all areas, in hospitals, community services and primary care settings and ensure that staff know that they should refer people to these services when concerns cannot be quickly resolved. Recommendation 4: promote the development of more useful complaints classification and reporting systems to enable clearer conclusions to be drawn from complaints data. Recommendation 5: encourage better and more public use of complaints and related information at the local level to drive up improvement. Recommendation 6: ensure that the planned training for complaints managers is delivered, preferably as part of the process of improving customer focus in the NHS. Recommendation 7: promote the extension of advocacy to support social care and continuing care and encourage the information commissioner and regulators to commission one-off advocacy support of the client's choice for people who have to use their systems. Recommendation 8: ensure that the Department of Health completes the review of ICAS data collection arrangements and reviews data sharing arrangements. Recommendation 9: ensure that any changes in statutory advocacy services respect service users’ views.
Opportunities arising from the Health and Social Care Bill Opportunity 1: HealthWatches could check that the principles set out in the 2009 Complaints Regulations are implemented locally including whether advocacy support is available in all parts of the NHS. Local HealthWatch assessments of local complaints handling could be made to Provider Boards, Commissioners, Health and Wellbeing Boards and Overview and Scrutiny Committees and an annual assessment could be submitted to the CQC alongside local organisations’ self assessments. Opportunity 2: HealthWatches could drive up local learning from complaints by checking that outcomes from complaints have been put into place, Boards and GP practices are reporting publicly on complaints and by scrutinising NHS annual reports about complaints Opportunity 3: HealthWatches could ensure that GP Consortia emphasise the need for effective complaints handling in their commissioning arrangements and use feedback from complaints in specifying and monitoring services and in making commissioning decisions. Opportunity 4: HealthWatch England could produce an Annual Report on complaint handling and learning from complaints based on feedback from local HealthWatches. Opportunity 5: ICAS could work with Local Authority representatives and HealthWatch England to help draw up guidance to inform complaints advocacy commissioning that draws on lessons from experience and includes clients’ views. May 2011 cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Further written evidence on behalf of Independent Complaints Advocacy Service (ICAS) providers and clients (CAL 26B) Prepared by the three independent charities that provide ICAS: Carers Federation POhWER SEAP
1. Introduction ICAS, provided by three independent charities, is the biggest NHS complaints handling service in England. In 2009–10 there were just over 101,000 complaints about the NHS. During the same year ICAS handled: — 78,500 enquiries about the NHS complaints system; — over 12,000 requests for self help packs, often providing short, follow up support; — 14,721 cases requiring direct advocacy support; and — 15 times more enquiries about the NHS complaints system than other organisations who publish results. These are much larger figures than those quoted to the Committee.18 Every client is asked for feedback about ICAS when their case is closed. Positive feedback about our advocacy services has increased year on year and now stands at 90%. Over 30% of cases accepted for full investigation by the Health Service Ombudsman have ICAS support. Unsurprisingly, we and our clients, have been following the Select Committee’s oral hearings on the NHS complaints and litigation systems with interest. Our Boards and clients are very concerned that the Committee appears not to have been provided with an accurate picture of the scale and nature of ICAS services and that some perspectives offered to the Committee about the NHS complaints system and about complaints advocacy do not reflect the views of the very significant number of complainants who use ICAS. In order to respond to the Government’s proposals for the NHS the three charities that provide ICAS have obtained views—including about the NHS complaints system—from over 3,000 people, many who are vulnerable and/or disabled. We also obtain regular feedback from clients and hold focus groups about the complaints system. We are in regular contact with NHS complaints managers. Drawing on this feedback and our knowledge of ICAS and the complaints system, our submission provides the Committee with further information about: — Advocacy, the ICAS providers and ICAS, as well as addressing misconceptions presented in oral evidence. — Views about the complaints system now and going forward. It also makes some recommendations and suggests opportunities for improvement arising from the NHS reforms.
2 About Advocacy, the ICAS providers and ICAS 2.1 About Advocacy and the three charities that provide ICAS The three ICAS providers are advocacy charities. Our advocacy services were (and continue to be) designed by people who fall into “the equality groups” who, tired of others making assumptions about their capabilities and views, wanted equal access to information and a voice their own. Our advocacy services support people to obtain information, evaluate options, speak up for themselves about decisions that affect their lives and take forward/resolve issues which are of importance to them, including those relating to complaints. Today advocacy has come to be regarded as a reasonable adjustment for people trying to access services and a good way of providing support to any group of people who feel unequal to the task of engaging with services (for example, because of literacy issues or distress). A recent sample survey of clients indicated that in the previous year 69% of clients had been in hospital and all had visited the GP. 64% had a disability, over half had a long term condition and 55% were aged over 55 years. 23% were from black or minority ethnic groups (rising to nearly half in London). A subsequent survey found that between 25–30% of people who requested advocacy support did so because they were too distressed to manage alone. To ensure that advocacy provides safe, reliable standards of service for clients, especially vulnerable clients, together with commissioners and other advocacy providers we have supported the development of a National 18 Mr Skidmore said that only 8.2% of complainants were able to access ICAS and Paul Streets stated 7,500 complainants were helped out of 25,600 referrals to ICAS. (Q20 and Q81 refer). cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Qualification in Independent Advocacy (NQIA) and an industry performance standard—the Quality Performance Mark.19
2.2 How was ICAS established? The Department of Health (DH) was the first government department to introduce advocacy—specifically complaints advocacy—as a statutory right, following a successful pilot in 2003. The service was commissioned for all of the English Regions in 2004 and retendered in 2005 ready for a start in April 2006. In keeping with the principle that advocacy is a service for service users designed by service users, the service specification was based substantially on the wishes of service users as established through independent research commissioned by MORI. The nine regional contracts were won by the Carers Federation, POhWER and SEAP.
2.3 Awareness of ICAS (Answers to Q4, Q18, Q20 refer) There were numerous references in the oral evidence to awareness about ICAS. Information is most useful if it is available just when people need it. For this reason the 2009 Complaints Regulations make it the responsibility of the NHS to provide information about the availability of ICAS at the point when a complaint is made. Not all Trusts do this and GP practices present a particular problem. To counteract this problem, ICAS providers: — Routinely provide posters, leaflets and printed information for NHS Trusts to distribute. — Routinely meet with complaints and PALS staff. — Seek involvement in induction and training for NHS staff. — Speak at health and social care conferences and events. — Network with hundreds of stakeholder groups. — Produce publications, have web based information and materials in many languages and formats. — Use targeted advertising of the service to increase take up. — Provide information to local MPs. The fact that we dealt with over 75,000 enquiries last year reflects the effectiveness of our strategies. However, we still feel more needs to be done and we would welcome additional support in ensuring that the NHS lets people know about ICAS.
2.4 What does ICAS do and when can ICAS become involved in a complaint? (Answers to Q18 and Q81 refer) (a) What does ICAS do? ICAS provides support to people who wish to complain that the NHS has not acted properly or fairly or has provided a poor service. ICAS provides an enquiry service, self help packs (with some follow-up telephone or 1:1 support if needed), a website with access to downloadable material and direct advocacy. Direct advocacy means — Providing people with an opportunity to talk confidentially about their concerns, with ICAS often being the first organisation to listen to the whole story. — Providing people with information about the standards that they should expect. ICAS staff have access to information about the standards that NHS should adhere to. — Helping people obtain medical records. — Obtaining medico legal advice if required. — Helping clients explore the options available at every stage of the complaints procedure, including helping them to understand the possible outcomes and consequences of their decisions. — Using expert communication tools to work with clients for whom communication is a major barrier to sharing their experiences of services. — Helping clients with writing effective complaint letters. — Preparing clients for meetings with NHS/ombudsman staff and providing support at those meetings. — Acting solely on the directions of the client. Because of the needs of many of our clients, even a simple request may require considerable resource. 19 Developed by Action 4 Advocacy with Department of Health (DH) support. www.actionforadvocacy.org.uk cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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To provide the necessary level of service, advocates have access to communications skills and aids, assistive technology, language line and interpreters. They also receive training in Human Rights and Equality and Diversity legislation, advanced communication skills, NHS policies, mediation, counselling and assertiveness, and in working with people with learning or physical disabilities or who are experiencing mental ill health. ICAS is a free, independent service handling significant volumes of complaints.
(b) When can ICAS become involved in a complaint? (Answer to Q81 refers) A question was raised about the point at which ICAS can become involved in the complaints process. ICAS can become involved at any point. One of the aims of the 2009 Complaints Regulations was to enable complaints to be resolved at an early stage. This aim was reinforced by guidance that required the NHS to log all concerns that were not resolved within one day as complaints. If this were done, and if the NHS were better at providing complainants with information about ICAS at the point when a complaint first arises, ICAS would likely be involved at the earliest stages of more complaints.
2.5 Misconceptions We are concerned about a number of points that were made about the ICAS service that are either wrong or require clarification. These are addressed below: (a) The Patients Association said “Sometimes people feel that ICAS is there to look at what the Trust is telling you and give you advice on whether or not what the Trust has told you is reasonable, and they don’t.” (Answer to Q19 refers) We do not know the basis on which this statement was made. The ICAS specification issued by DH— informed by patient views obtained by MORI and views from experts such as the Ombudsman—says unequivocally that advocates must: “… — Discuss options with clients, providing full and balanced information to enable them to make their own decisions and choices — Help clients access the information they need …” To do this advocates have access to information about standards applicable to NHS care and know how to support clients to seek information about local standards. They have access to medico legal advice for cases where more support is required to help understand clinical matter. (b) AvMA’s caseworkers contacted a Trust when three similar cases had been spotted and this was not something ICAS would do. (Answer to Q19 refers) This is wrong. All three ICAS providers are able to, and do, identify and report on issues, trends or patterns. For example, one of the providers has recently drawn attention to a cluster of prison complaints to both the commissioning PCT and DH, another raised concerns about potential abuse, a further has been involved in flagging multiple complaints relating to a maternity service. Attached at Annex A is a small sample of summary of outcomes drawn from ICAS cases which were used in a recent report. (c) CAB “lost” their ICAS contract in 2006 because they had begun to speak out critically about NHS complaints handling. (Answer to Q19 refers) Service users, many of whom have significant disabilities and/or face disadvantage play key roles in governing all three ICAS organisations. Demonstrating the ability to compete fairly and effectively with others is fundamentally important to these people. The process for procuring ICAS was described in 2.2. We understand that the procurement process was externally audited and given a clean bill of health. We would not ordinarily pick up on this point, but we feel it is important that the integrity and efforts of people who have faced and overcome discrimination are not discredited, even unintentionally, by remarks such as these, made in public and high profile settings. (d) In response to a question about the reasons why AvMA no longer provided medico legal advice to ICAS, the Committee was informed that this was due to resource issues. (Answer to Q22 refers) We are aware that clients are sometimes misinformed as to whether or not ICAS is able to take medico legal advice and we are concerned that the answer provided to the Committee might add to the confusion. There has been no reduction in the resource available to ICAS for medico legal advice, and ICAS commissions this service from appropriately qualified and experienced legal teams. There were references to ICAS using organisations like AvMA to “plug the gap”. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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While we do sometimes refer to other providers because we have assessed that they are better able to support our clients than we are, we do not use other services to ‘plug gaps’. (e) The Patients Association said that advocacy should include “a proper independent scrutiny of answers.” (Answer to Q23 refers) We have already clarified in (a) above that ICAS can obtain independently sourced information— including medico legal advice—to assist clients in deciding whether or not they feel that their complaint has been satisfactorily answered. If the point that the Patients Association is making is that advocates should reach a view as to whether or not a complaint has been satisfactorily addressed, then this is not a role that can be fulfilled by any advocacy service. Advocates act on behalf of the client, and their job is to support the client to define and present their case as well as possible. By definition, therefore, advocates cannot offer independent scrutiny—ie scrutiny that is independent of the complainant and the body complained about. The Ombudsman’s Office is the only body able to offer an independent review of this kind. Indeed, the Making Experiences Count20 (MEC) project (which informed the development of the current complaints regulations and involved many complainants and stakeholders) considered previous arrangements for independent review including those operated by the Healthcare Commission and before that, the local Convenor, and found them unhelpful. Patients and stakeholders said that neither of these approaches worked: once trust had been lost these additional layers caused delay and entrenched positions, with people not being satisfied until they had exhausted the process. What most people wanted was a system that quickly restored the relationship between them and the NHS through effective local resolution of issues wherever possible, with expeditious referral to a final arbiter (the Ombudsman) where agreement could not be reached. This is what the revised regulations deliver. (f) AvMA and the Patients Association said that ICAS operates inconsistently. The Ombudsman noted that advocacy can be patchy. (Answers to Q19 and Q80 refer) ICAS operates to the same specification throughout England and the three providers of the service have invested considerable attention to ensuring consistency of quality and provision across the country. Whilst, as in any service, individual staff members may sometimes perform differently, we do not receive reports of vast inconsistencies. As far as we can tell, the oral evidence was based on one or two cases. However, we would be glad to have details of any individual cases where there are inconsistencies and we will address these. We meet regularly with the Ombudsman’s office to exchange information and, from those discussions, we understand that “patchiness” refers to the fact that some health bodies are better than others at informing clients about the availability of advocacy, not all advocacy is provided by ICAS and quality therefore varies, and that advocacy provision for service users needing support to raise complaints about social care, which is commissioned by individual local authorities, is extremely variable. We agree with all the Ombudsman’s points—which is why we campaigned for statutory services to ensure consistent service availability and standards, a professional advocacy qualification and a quality assessment process for advocacy providers. We would take this point further. Because of the complexity of their needs, a proportion of our clients have complaints that contain inter-related issues and require the use of multiple complaints systems. For example, a complaint may relate to health and social care, contain continuing care issues, require input from the Information Commissioner and a referral to a body such as the General Medical Council (GMC) or Nursing and Midwifery Council (NMC). The Coroner may also be involved. At the moment ICAS can only support the complainant with his/her complaint about the NHS and those aspects of social care that relate to a jointly delivered care plan. With regard to continuing care, ICAS can only support complainants once a review has been completed—whereas for most clients the decision to request a review is in effect a complaint because they are dissatisfied with the original decision. There is no advocacy assistance available for people who feel they need to refer an issue to the Information Commissioner or for people who need to refer to the professional bodies or the Coronial system. The people whose cases require referral to several different bodies are often those least able to contend with this level of complexity. Although these cases are relatively few, the experiences that they represent can be of considerable significance: these are the kinds of cases where people and issues can fall between the gaps, sometimes resulting in tragedy that could have been prevented. The absence of advocacy support in these circumstances means that the opportunity to have their complaints fully addresses is denied to vulnerable people, and the NHS and other bodies lose the opportunity to learn how to treat some of the most vulnerable people in society. Fragmented advocacy provided by each separate player in the complaints system would not be helpful here. People with complex needs require appropriately skilled, continuous support from a single service—having to use multiple advocates for different systems just adds complexity to what is already a difficult set of circumstances, and in any event, most people just see their complaint as being about the NHS and are unaware that their complaint has crossed some border between regulatory systems. We ask that advocacy be extended to the review stages of continuing care, and that agreement be 20 Department of Health, Making Experiences Count: A new approach to responding to complaints, 2007. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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sought with other organisations that may be involved in complex complaints to commission advocacy of the client’s choice on a case by case basis to enable clients to obtain continuous advocacy support throughout their complaint.
3. Views about the Complaints System Now and Going Forward We outlined in section 1 the feedback sources used to inform this submission. The following groups of issues emerge strongly from these sources of feedback: — the nature of the debate about the complaints system; — views on the way that the new regulations are working and how they can be improved; — reporting on complaints; — commissioning and GP Consortia; — commissioning advocacy; and — HealthWatch—an opportunity.
3.1 The nature of the debate about the complaints system Clients are worried that there is a push to create a more adversarial complaints system. Even for the relatively small number of cases where serious clinical matters are at issue, most clients say that they do not want to be part of an adversarial process: those who do generally choose the legal route or use the press. Much more frequently, clients want to maintain a relationship with the NHS or to bring grief and hurt to an end by finding out the truth, having it acknowledged and something happening to put it right. People want a restorative approach. This view also emerged from complainants involved in the MEC consultation process. Growing numbers of clients are also telling us that they feel that the burden of checking the quality of healthcare is being passed on to them—that it is expected that as patients or carers—when they are not well or worried—they will check standards and complain if there are failings. They feel increasingly that failings in the NHS are being attributed to a lack of patient initiative in pursuing complaints. Most clients do not want this burden, either as patients or complaints. They want to feel that they can trust the NHS, and those responsible for regulating and scrutinising the NHS, to tell them what standards of care they should expect and then to care for them safely. They want a culture that allows their personal concerns to be raised and addressed humanely and quickly, with the NHS, regulators and inspectors doing the job of scrutiny and learning, not passing this on to patients and carers. By the time I found ICAS I was a wreck. I had been elsewhere and they told me all the things they thought I should say and do. They wanted me to use a lawyer. They kept telling me I was helping others by complaining. I wanted to scream “My daughter didn’t die to help others. I can’t think about other people. I can’t get out of my own head.” My ICAS advocate just knew that I needed to find my own way to do this for myself and my daughter. He helped me get my thoughts in order, get information and to find the courage to speak about the things I needed to say. This service was more healing to me than anything else. I hope this doesn’t happen to anyone else, but it was never my daughter’s job die to save the NHS, nor mine to use my grief to make things better for others. ICAS client whose daughter died. Complaints, whilst important, can only ever be part of the process of determining how well the NHS delivers care: it is a sad indictment of professionals, regulators and inspectors when patients feel that the burden of responsibility for maintaining appropriate standards in the NHS is falling on them, and by proxy, on their advocates.
3.2 How the new regulations are working and areas for improvement Our clients tell us that although there are areas that need improvement, the revised complaints system is working much better than the previous one and do not want it changed.21 It is already clear that most complaints are resolved to the client’s satisfaction at a local level with only a very small proportion of complaints being incapable of resolution without the intervention of the Ombudsman.22 This view was also echoed by patients who gave oral evidence to the Committee. The key areas where clients and advocates feel improvements are needed are: (a) The NHS needs to pay more attention to registering as complaints concerns that remain unresolved after one day and to ensuring that people are made aware of the complaints system and the local support available from ICAS as soon as a complaint is made. 21 www.legislation.gov.uk/uksi/2009/309/contents/made provides details of the consultation exercise 22 Although some clients find the Ombudsman’s approach of returning those complaints where more can be achieved locally frustrating and time consuming, most clients concur with the underlying aim of encouraging effective local resolution. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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As noted in 2.4(b) if all NHS organisations followed guidance about logging concerns that remain unresolved for a day and about providing ICAS information when a complaint is logged, this would likely address the issue of ensuring timely awareness of ICAS. However client experiences tell us that not all Trusts follow guidance and GP practices present a particular problem. Clients tell us that if raising a concern with staff at the time does not solve the problem, all too often they are not told about any other possible routes to resolution, not the complaints process, not PALS and not ICAS—they are simply left not knowing what to do. At the very least this results in unnecessary worry for people and in some cases the absence of information about further help or escalation processes can be extremely frightening and leave the door open for a potentially serious service failure. The case below illustrates the potential consequences of not providing people with information about complaints services and ICAS, and the positive impact that can be achieved through early ICAS involvement. Mr and Mrs B were told that their child was to be discharged with breathing equipment which they felt unable to manage. There did not seem to be any offer of community nursing support and the family was frantic with worry. They did not know what to do to stop this discharge. They were afraid that if they took their child home she would die. They heard about ICAS from a friend. The advocate was able to speak to the Director of Nursing who intervened to achieve an appropriate care plan. ICAS enquiry resolved quickly (b) Complaints staff need more training and support to deliver a client focussed service. People still talk of ‘being processed’ or feeling invisible once the system is in operation. They describe: — Failures to understand their concerns and/or desired outcomes. — Delays and lack of communication. — Not following requests such as for large print, letters to be sent to an advocate or to speak at a particular time of day. — Poorly worded explanations, qualified apologies and no clear outcome. — No communication about promised follow up action. — Reluctance to consider the merits of a view that does not concur with the clinical notes. This situation can lead to people persistently trying to convey their point of view and being labelled as unreasonable. — Not considering other options such as mediation when there is no obvious way of resolving a complaint: for example in the situation described in the previous point. — Attitude of some medical staff. — Difficulty in obtaining records. — Not being informed about advocacy, or not soon enough. The case below illustrates the experience from a client’s perspective. I tried to say that George dribbled and slopped his food because he had been hurt in the war. He was really brave and he’s a real gent. Half the nurses ignored him and one of them laughed at him. He did get better, but I just thought it was all wrong. I just couldn’t get peace without saying something about it. When I complained to the hospital I got no sympathy at all, just loads of stuff about protocols. I didn’t get a proper hearing or get anyone to understand what I was saying til I got to ICAS. But they didn’t tell me about ICAS until half way through. Through ICAS I got to talk to a senior nurse and I know now that George’s case is used in training. I feel a lot better. ICAS client complaining about her experience of her husband’s care (c) Much more attention needs to be paid to people with disabilities or communications needs. Many people who use ICAS experience exclusion and discrimination as a part of daily life. Many rely on the NHS. Because of cultural and communication issues or mental health problems, people are sometimes labelled as unreasonably persistent complainants, so their complaints go unaddressed and they are placed at an even greater distance from services. (Answer to Q6 refers) Failure to provide information about services that could help people in these circumstances is not only unforgiveable but illegal. The vignette below describes one woman’s experience I am Deaf and mainly speak through BSL. I do not read English very well. I suffer a lot with depression. Staff at my GP surgery got annoyed with me because I couldn’t talk to them very well and they thought that because I was Deaf, of course I could read. There was one woman who used to take me to a little area in reception and shout at me. Everyone else in the room could hear but I couldn’t—I am Deaf. She said she was going to stop answering my concerns because I was vexatious. I heard about ICAS when I went to hospital for depression. They had an advocate with BSL and she helped me to write a letter to my GP and we went to see him cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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together. To be fair, he said he was really sorry. He said he didn’t realise what was going on. I am not sure, but I know now there is someone who can help me complain if I need too—and this makes me more confident to go to my GP for my tablets when I need to. Some Trusts use advocacy very positively to help support people with disabilities—and an example is included at Annex B. (d) Learning from the best Our advocates consider that the system works best in organisations that were selected as MEC Early Adopters to test the new complaints system. When the new complaints system was introduced, DH scheduled a review in 2012. If this review goes ahead, or can be brought forward, it would provide a timely opportunity to draw out lessons about what works well in Early Adopter sites and enable learning to be shared across all NHS organisations.
3.3 Reporting on learning from complaints (Answers to Q19 and 23 refer)
While complainants want to know that systems are in place for detecting shortfalls and putting them right, a growing number are telling us that they are frightened by some reports about the NHS. Our clients want the NHS and the authors of reports to take more care to explain that most people are satisfied with their health care, and to explain where they can go if they remain concerned. We have had many calls in recent weeks from vulnerable people who have no specific complaint about the NHS but who are worried about attending hospital. Whilst it is right that persistent failures in healthcare should be addressed, it surely cannot be right that learning from a complaints system that is intended to help enable dialogue and resolve difficulties should leave people in such distress.
We are not suggesting that data from complaints should not be used, but that they should be reported responsibly. We note that the Ombudsman drew attention to the significant shortcomings in complaints data, and we agree. Standard categorisations for complaints data are not very helpful: “aspects of medical treatment” make up the largest category of complaints reported upon in 2009–10—but this categorisation is so broad that it is almost meaningless. Counting numbers of complaints is not very helpful either. Unless variables such as organisational attitude to complaints, the availability of support for clients, and the socio economic make up of a catchment population, can be accounted for it is almost impossible to interpret differing volumes of complaints between organisations. Yet such data are published, and cause concern that may or may not be justified.
Whilst more useful NHS-wide complaints classification and reporting systems are developed, we think there is much that could be done at a local level where complaints data can be interpreted more clearly. Taken together with other data such as serious untoward incidents and nearly events, complaints data could be part of an effective risk management system for Trusts. For many complainants, knowing that their complaint has resulted in local service improvement validates their experience and allows it to be reframed in a more positive light. If local NHS organisations were to provide demonstrable evidence of learning from complaints this would help many people achieve the closure they seek. It would also help organisations present a positive profile to patients who, in future, will be entitled to much more information and to choose between healthcare providers.
There is a platform on which to establish effective local reporting systems: NHS organisations are already expected to record issues raised by complainants, action taken and lessons learnt, and to report on complaints and complaints handling in an annual report. However, in our experience these reports are of variable quality as is the level of interest taken by Trust Boards. Reporting about complaints about Foundation Trusts and about GP services is even more patchy.
We also feel that information reporting systems for ICAS could be improved—and we are aware that DH is working on new arrangements. We hope that the opportunity will be taken to enable data sharing with LINks as this will help them develop a fuller picture of complaint handling at a local level, and will help in preparing for taking on the HealthWatch role.
3.4 Commissioning and GP Consortia (Answer to Q14 refers)
One matter raised by many of the 3000 clients who offered views on Equity and Excellence: Liberating the NHS, was the extent to which GP consortia would use complaints data (and other patient feedback) in commissioning decisions. Many of our clients felt that GPs were not very well informed about/interested in their complex needs and that their voices would not be heard. Their view is supported by the fact that GP services are an area of the NHS where interest in and management of complaint handling varies considerably.
We hope that HealthWatches and Health and Wellbeing Boards will ensure that local consortia do listen to the patient voice. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3.5 Commissioning Advocacy (Answers to Q11 refer) The many clients who contributed to our responses to Equity and Excellence: Liberating the NHS were particularly concerned that their right to statutory advocacy should not be lost and that complaints advocacy should continue to be commissioned effectively. We and our clients were pleased, therefore, that the current contract for ICAS was extended until 2013 to allow effective transition planning and that local authorities, who are experienced commissioners of advocacy services, are to commission complaints advocacy services going forward. Clients hope that there will be commissioning templates like those used for IMHA and IMCA to help local authorities to ensure a consistent standard of service across England and that such templates will draw on ICAS experiences.
3.6 HealthWatch—an opportunity We think that there are opportunities through the provisions in the Health and Social Care Bill to make changes that will improve the quality of complaints handling services and enable learning from complaints. In particular, we think that local HealthWatches could play a key role going forward in promoting complaints advocacy, checking that complaints regulations are implemented as intended and ensuring that complaints data are reported upon publicly along with resulting improvements. They could also ensure that GP consortia use complaints data and other patient feedback in their commissioning decisions. Both local and national HealthWatches could produce an annual report on complaints handling, with national HealthWatch bringing together an overview using local reports. We are already working with LINks colleagues to help inform such developments.
4. Recommendations and Opportunities Based on the views of our clients and advocates, we would like to make the following recommendations to the Select Committee and suggest a number of areas where the proposed reforms of the NHS may give opportunity for improved complaints handling and greater learning from complaints
4.1 Action to improve the complaints system: Recommendation 1: allow the new complaints system to bed in, but bring forward the planned DH review, using lessons from implementation so far to strengthen complaints handling across the NHS. Recommendation 2: reinforce the requirement to record as complaints any concerns that cannot be resolved in one day. Recommendation 3: reinforce the requirement that information about Complaints Services, PALS and ICAS be displayed prominently in all areas, in hospitals, community services and primary care settings and ensure that staff know that they should refer people to these services when concerns cannot be quickly resolved. Recommendation 4: promote the development of more useful complaints classification and reporting systems to enable clearer conclusions to be drawn from complaints data. Recommendation 5: encourage better and more public use of complaints and related information at the local level to drive up improvement. Recommendation 6: ensure that the planned training for complaints managers is delivered, preferably as part of the process of improving customer focus in the NHS. Recommendation 7: promote the extension of advocacy to support social care and continuing care and encourage the information commissioner and regulators to commission one-off advocacy support of the client's choice for people who have to use their systems. Recommendation 8: ensure that the Department of Health completes the review of ICAS data collection arrangements and reviews data sharing arrangements.
4.2 Opportunities arising from the Health and Social Care Bill Opportunity 1: HealthWatches could check that the principles set out in the 2009 Complaints Regulations are implemented locally including whether advocacy support is available in all parts of the NHS. Local HealthWatch assessments of local complaints handling could be made to Provider Boards, Commissioners, Health and Wellbeing Boards and Overview and Scrutiny Committees and an annual assessment could be submitted to the CQC alongside local organisations’ self assessments. Opportunity 2: HealthWatches could drive up local learning from complaints by checking that outcomes from complaints have been put into place, Boards and GP practices are reporting publicly on complaints and by scrutinising NHS annual reports about complaints. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Opportunity 3: HealthWatches could ensure that GP Consortia emphasise the need for effective complaints handling in their commissioning arrangements and use feedback from complaints in specifying and monitoring services and in making commissioning decisions. Opportunity 4: HealthWatch England could produce an Annual Report on complaint handling and learning from complaints based on feedback from local HealthWatches. Opportunity 5: ICAS could work with Local Authority representatives and HealthWatch England to help draw up guidance to inform complaints advocacy commissioning that draws on lessons from experience and includes clients’ views. May 2011
Useful Documents 1. Healthcare Commission, Spotlight on complaints: A report on second-stage complaints about the NHS in England, 2009. 2. The Health Service Ombudsman for England, Making things better? A report on reform of the NHS complaints procedure in England, The Stationery Office, 2005. 3. Department of Health, The NHS Constitution, 2009. 4. HM Government, Our health, our care, our say: a new direction for community services, The Stationery Office, 2006. 5. Department of Health, Making Experiences Count: A new approach to responding to complaints, 2007. 6. National Audit Office, Feeding back? Learning from complaints handling in health and social care, The Stationery Office, 2008. 7. The Customer Voice in Transforming Public Services, independent report by Bernard Herdan, Cabinet Office, 2006.
Useful Links The right to complain—NHS constitution Link to interactive version of the constitution/handbook/accountability document http://www.eoe.nhs.uk/nhs_constitution/downloads/02_nhs_constitution-interactive_version.pdf Current complaints regulations and guidance http://www.legislation.gov.uk/uksi/2009/309/contents/made—2009 regulations http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_ 111619.pdf—PALS clarification notification http://www.legislation.gov.uk/uksi/2009/1768/contents/made—2010 amendments Listening, responding, improving; a guide to better customer care http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_095408 CQC use of complaints information http://www.cqc.org.uk/contactus/howtoraiseaconcernorcomplaint/ shareyourindividualexperienceorfeedback.cfm GMC guidance: When things go wrong: http://www.gmc-uk.org/guidance/good_medical_practice/relationships_with_patients_open_and_honest.asp Nursing and Midwifery Council advice on how to deal with problems http://www.nmc-uk.org/Nurses-and-midwives/The-code/The-code-in-full/ Parliamentary and Health Service Ombudsman Listening and learning—the Ombudsman’s review of complaint handling by the NHS in England 2009–10 http://www.ombudsman.org.uk/improving-public-service/reports-and-consultations/reports/health/listening- and-learning-the-ombudsmans-review-of-complaint-handling-by-the-nhs-in-england-2009–10 Equality Act 2010—guidance for the public sector http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/ cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Annex A SAMPLE OF OUTCOMES TAKEN FROM RECENT REPORT Case Ref: Case précis Outcome(s) TW/30486 Access to speech therapy for 1. Trust to notify client when recruitment and training of son nursery nurses to undertake speech and language checks has been completed. 2. Trust to provide client with copy of the 3 year speech and language check questionnaire for parents for her comments. 3. Review son's case notes to determine why his referrals were not followed up. 4. Trust and local authority to confirm to complainant that vacant therapist post at school has been filled. 5. A quarterly report on the PCT's progress with implementing the recommendations of the Bercow Review to be provided to PCT Board 6. Apology for poor complaint handling. 7. Invitation to join the PCT's membership scheme. BS/23328 Client’s complaint revolved 1. ITU referral procedures reviewed by the ITU team, around the care and treatment physicians and A&E doctors. of her 18 year old daughter 2. Pathway of procedures for the management of sepsis prior to her sudden death at a created. London Hospital. 3. Increased checks carried out by an Operating Department Assistant on a daily basis in A&E including checks on equipment. 4. Clinical Educator employed to be responsible for the training and development of A&E nursing staff. 5. Senior Complaints and PALS Manager employed. 6. Foundation course (run in collaboration with a university) in emergency care introduced for all nurses working with A&E. The programme enables nurses to acquire the essential skills of patient assessment, triage and dealing with emergencies. As part of the course nurses learn how to recognise and manage respiratory emergencies. This includes recognising inadequate ventilation and airway management. Within the course the identification and management of shock, particularly sepsis, is a prominent feature.’ 7. Weekly document audits carried out regularly. 8. Staffing levels reviewed and four more nurses appointed to A&E. 9. Matron for Clinical Practice employed to ensure high quality care is provided in A&E. Second Matron soon to be employed. 10. Two nurses now allocated to resuscitation area at all times. 11. Manchester Triage system introduced (a system to improve the detection and priority of critically ill patients). 12. Documentation used in A&E reviewed and amended. 13. System introduced measuring key clinical indicators within each ward and department on a weekly basis. Results are reported to Director of Nursing—any issues relating to infection control, incidents or staff development are monitored and acted upon. 14. Revision of investigation of incidents, complaints and claims policy. 15. Production of a complaints leaflet providing information about support, including ICAS. 16. Digital recording system to be used in meetings. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Case Ref: Case précis Outcome(s) BS/29824 The client and his wife are 1. An apology for the distress caused; Muslim. The client’s wife 2. An explanation, which included an assurance that in underwent a termination of her future, staff will ask clients if they fully understand the pregnancy on the basis of a consent form before signing it, and highlight the issue of high risk of Down’s syndrome. cremation. 3. A result of the complaint, the care pathway for managing terminations was changed and a new burial arrangements were introduced by the Trust. TW/28164 Premature discharge of mother 1. Acceptance by Trust of PHSO’s critical report from hospital 2. Unreserved apology provided 3. Appointment of additional consultant medical staff based in the Acute Assessment Unit 4. Appointment of Specialist gynecology cancer nurse 5. Introduction of improved documentation 6. Offer of meeting to discuss and review changes.
Annex B MR AND MRS N—AN EXAMPLE OF COMPLAINTS ADVOCACY REDUCING COSTS AND IMPROVING RESPONSIVENESS Mrs N has a learning disability and required a hysterectomy. She finds it hard to put thoughts into words, especially when she feels under pressure. She had been hospitalised previously and was very fearful. Her husband, who has mental health issues and a physical disability, was very anxious that his wife should make the right decision as she was a relatively young woman. Mr N had a tendency to become very agitated when he could not understand what was happening. The patient’s file was very large indeed and the point had been reached where the hospital was at a loss to know how to proceed. Mrs N was increasingly worried about her health. Eventually the couple decided to make a complaint. The hospital told Mr and Mrs N about the local ICAS service. ICAS was able to provide an advocate who contacted clinical staff to understand what treatment was needed and why, what would happen and how the process would be managed. She then talked this through with Mr and Mrs N and wrote up notes in a way that helped them remember what they had discussed and decided. She also talked through Mrs N’s fears and found that she had a phobia about being attacked in the dark, having been the victim of hate crime. A plan was drawn up for nurses to call out if they needed to approach Mrs N at night. Kosher food was arranged. Mrs N is a very modest person and felt a lot better when provision was made for her own care assistant to come and help her bathe. Before admission the advocate accompanied Mr and Mrs N to outpatients’ clinics and facilitated an easy way for Mr and Mrs N to raise any new queries with the consultant team. Mrs N has had her surgery and is recovering successfully. The hospital calculates that up until the advocate became involved, the case had cost them about £15,000 in additional time and expense.
Written evidence from the Association of Personal Injury Lawyers (CAL 27) The Association of Personal Injury Lawyers (APIL) is a not-for-profit organisation with a 20-year history of working to help injured people gain access to justice they need and deserve. Our 4,700 members are committed to supporting the association’s aims and all sign up to APIL’s code of conduct and consumer charter. Membership comprises mostly solicitors, along with barristers, legal executives and academics. APIL has a long history of liaison with other stakeholders, consumer representatives, governments and devolved assemblies across the UK with a view to achieving the association’s aims, which are: — To promote full and just compensation for all types of personal injury. — To promote and develop expertise in the practice of personal injury law. — To promote wider redress for personal injury in the legal system. — To campaign for improvements in personal injury law. — To promote safety and alert the public to hazards wherever they arise. — To provide a communication network for members. We welcome the opportunity to provide written evidence to the Health Committee. Our evidence is restricted to the expertise of our members. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Executive Summary — APIL recognises the political appetite for further efficiencies given the current economic climate; however, the current proposals mean that the most disadvantaged and poorest members of society will be hit the hardest. — It is essential that any reforms ensure that human rights are preserved and that emphasis is placed on injury being prevented through social responsibility. — There has been some improvement since the introduction of the new complaints system in 2009. However further improvement could be made by introducing a more joined up approach between the complaints process and referrals to the NHSLA. — The cost saving of 17 million to the legal aid budget if clinical negligence claims are excluded is less than one% of the overall legal aid budget of 2.2 billion. — Removing clinical negligence from legal aid whilst reducing the availability of no win no fee agreements will result in the NHS becoming even less accountable to those injured through its negligence. — Clinical negligence claims notified to the Compensation Recovery Unit (CRU) have decreased since 2000. — Initial analysis suggests that the current proposals would mean that it would only be economic to pursue cases with prospects of success over 75%. — Removal of legal aid for clinical negligence cases coupled with Jackson’s primary proposals will reduce access to justice and take damages from the most vulnerable. — Leading counsel suggests that primary proposals for reform could discriminate against the disabled and infringe their human rights. There are also issues surrounding the Equality Act 2010 and Disability Discrimination Act 1995. — The primary cause of unnecessary costs in the system is poor defendant behaviour and the current proposals do not address this. — There is currently limited access to justice for lower value clinical negligence claims. Proposed changes to the pre-action protocol will reduce areas for potential dispute and reduce costs. — Mediation can work well where more is required by an injured person than just monetary compensation for example an apology. — APIL members report unwillingness on the part of the NHSLA to consider mediation early in a claim before issues become entrenched and it becomes too late to resolve.
Introduction 1. APIL understands the need for costs to be streamlined and systems to be efficient, particularly in the current economic climate. But this should never be at the expense of vulnerable, injured people. 2. It is essential that we maintain individual human rights and prevent injury where possible through social responsibility. Negligent actions will unfortunately happen and when this occurs we must have a system that provides access to care, rehabilitation and full redress to ensure, so far as possible, that the injured person is put back into the position that he was in before the negligence occurred.23
Complaints 3. Since the introduction of the clinical complaints procedure in April 2009 there has been some improvement in the way in which complaints are handled by Trusts. Response to complaints correspondence is more frequent whereas previously letters often were unanswered. 4. The changes have also brought more comprehensive and detailed responses from the Trust which allow the injured person to consider the viability of a claim with their legal adviser. 5. There are still improvements to be made to ensure that the Trust respond within the timeframe stipulated. There can often be delays on the part of the Trust which are unexplained. 6. There needs to be a more joined up approach between the complaints process investigation of claims, the pre action protocol and the litigation process against the NHSLA to prevent duplication in work, effort and cost.
Litigation 7. The actual cost of clinical negligence cases to the Government in funding is £17 million a year out of a legal aid budget of £2.2 billion.24 Therefore the overall cost saving to the legal aid budget if funding is removed for clinical negligence cases is less than a 1%. 23 Lord Blackburn in Livingstone v Rawyards Coal(1880) 4 App Cas 25: “I do not think that there is any difference of opinion as to it being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been if he had not sustained a wrong...”. 24 Legal Aid (Clinical Negligence Cases) Oral Answers to Questions—Justice House of Commons debates, 23 November 2010, 2:30 pm. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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8. In the absence of legal aid or some other adequate method of funding clinical negligence cases there is little way of holding the NHS accountable for mistakes that it makes. Bringing a claim makes the NHS accountable for its actions in a way that the complaints procedure does not. In the period April 2009 to March 2010 there were over a million adverse incidents reported to the Reporting and Legal Services Department at the National Patient Safety Agency.25 Of these, 65,735 resulted in moderate harm defined as “Any patient safety incident that resulted in a moderate increase in treatment and which caused significant but not permanent harm”. A further 7,770 caused severe (permanent) harm and 3,679 resulted in the death of the patient.26
9. Yet in the same period only 6,652 claims were brought against the NHS.27 A service that provides over 3 million patient treatments every week in England.28
10. Contrary to the popular and perpetual myth, there is no “compensation culture” in this country. People are not queuing up for compensation payouts. This is plainly illustrated by the fact that the number of clinical negligence claims notified to the Compensation Recovery Unit29 (CRU) has fallen in the last ten years. In 2000 to 2001, 10,901 claims were notified, whilst in 2009 to 2010 this dropped to 10,308.
11. Removing legal aid for clinical negligence cases coupled with the primary proposals currently being consulted upon by the Ministry will have the effect of making it difficult for any person, who on the face of it appears to have a good claim but where there are likely to be liability difficulties, to pursue their claim. Law firms will simply be unable to fund cases where the prospects are less than very good. With no legal aid and only reduced success fees, there will be insufficient working capital available for lawyers to take on cases where prospects of success are 51% or more, as it is now. Initial analysis suggests that the current proposals will mean that it will only be economic to pursue cases with prospects of success over 75% or more. We already know (from the figures above) that many patients who suffer moderate or severe injury or death through the negligence of the NHS do not pursue a claim. These proposals will reduce access to justice even further.
12. Legal aid for clinical negligence, because of the current eligibility criteria, is granted mostly to children and those who lack capacity as a result of injury. By virtue of this eligibility Legal aid supports the vast majority of birth injury claims brought against the NHSLA and in that respect is the key factor in enabling lifetime care support to be put in place for our country’s most vulnerable citizens.
13. APIL along with PIBA30 obtained advice from leading counsel in September this year who advised on the implications of the Jackson proposals to reverse the recovery of CFA success fees; cap success fees at 25% of general damages and damages for past losses; and increase general damages by only 10%. The advice expresses considerable doubts about whether the proposals could be defended under the European Convention of Human Rights, if applied to seriously or catastrophically injured claimants. Specifically, counsel has advised that the proposed changes would affect the right of access to justice of such claimants, which is guaranteed by Article 6 of the Convention (in conjunction with case law which deals with the issue of adequate means of funding) because they would become reliant on finding a suitable legal team prepared to forgo payment for the financial risk of conducting the claim on a CFA. Article 14 of the Convention protects such individuals who may be at a disadvantage in this way.31 Counsel was also of the view that the vast majority of claims affected by these changes could be vulnerable to challenge under section 21D of the Disability and Discrimination Act 1995 and section 19 of the Equality Act 2010. It is also questionable whether costs can be deducted from past losses, which are often held in trust on account by the claimant for family members in respect of care.
14. Earlier resolution of the issues in a clinical negligence case is in the interest of both the claimant and the NHS delivering compensation more quickly to the injured person and diminishing the transactional costs sustained by the defendant. Defendants argue that they are paying out too much in costs but the remedy lies in their own hands. In meritorious cases that are not resolved early and where the defendant take every point and proceeds to trial, costs will be significant because of the failure to achieve early resolution. All of the decision making on this lies with the defendant as to: — The timing of its initial investigation of the claim. — The expertise it engages to risk assess the merits of the claim. — The assessment it makes of the likely cost of the claim. — The cost it is prepared to pay to conduct its defence if the claim does not resolve in the pre action protocol. Only when the cases reaches litigation can the claimant and the Court influence the speed of resolution. 25 National Patient Safety Agency Annual Report 2009/2010 page8. 26 National Patient Safety Agency. 27 NHSLA Report and Accounts 2009/10 page 13. 28 http://www.nhscareers.nhs.uk/notSure.shtml 29 Performance statistics http://www.dwp.gov.uk/other-specialists/compensation-recovery-unit/performance-and-statistics/ performance-statistics/ 30 Personal Injury Bar Association is a specialist bar association for barristers who practice in the field of personal injury law. Members act for both claimants and defendants. 31 A copy of the advice was sent to the Secretary for State for Justice. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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15. Defendants have the ability to risk assess cases at an early stage and can do it more accurately than claimants as they hold all the case information and have ready access to clinical advice.
16. Joint stakeholder discussions have produced a revised and updated pre-action protocol32 for clinical negligence claims by consensus. Suggestions have been made to streamline the process, reduce areas for potential dispute and reduce costs. The most significant proposal is the introduction of a new intermediate stage involving early notification of the claim to the defendants allowing them longer to investigate the claim and greater opportunity to admit liability earlier therefore saving significant costs. Other proposals seek to resolve current areas of dispute over disclosure of medical records and other documents by prescribing more clearly what the duties of the parties are. It is hoped that this will reduce duplication of effort of the parties and reduce cost. [Appendix 1 to this submission is the revised Pre Action Protocol)]
17. The collaborative approach achieved during the protocol discussions has led us to engage with the NHSLA over the last six months. This has culminated in open dialogue between APIL and the NHSLA. There is a willingness on both sides to make improvements where possible. The NHSLA expressed an interest in the multi-track code. The code was developed to help parties involved in higher value multi-track personal injury claims resolve liability. It puts in place a system that meets the reasonable needs of the injured person and works to settle the care by narrowing the issues before settlement or trial.
18. There is already limited access to justice for lower value clinical negligence claims. Current public funding criteria denies funding to claims where the value of the damages is less than £10,000 or where the case does not meet the cost benefit criteria. This access to justice problem will only increase if the current proposals are implemented. APIL believes that there is real merit in exploring the possibility of a streamlined process for straight-forward clinical negligence claims where liability has been admitted and where injuries have resolved in a relatively short period of time. Such a process would have to exclude fatal accidents and stillbirths as these are cases where an incident is so serious as to cause death that lessons should be learned from them. Such a process would and should create swift access to justice at a fixed and proportionate cost.
19. Work to develop such a scheme needs to be approached with caution. The previous Government introduced a streamlined process for lower value road traffic accident claims to improve the speed at which injured people receive their compensation and to fix the amount of work involved in pursuing these claims in return for fixing the fees recoverable. The process was developed with both sides of the industry and deals with 75% of all personal injury claims.33
20. In time it is hoped that this process will deliver all the Government’s objectives. However, at this stage it is premature to suggest that this is so. Teething problems are not least because the IT solution was written before the civil procedure rules were written and in some cases the former does not mirror the latter. In addition there are other issues to resolve such as who owns it, who runs it and who owns the data. It is essential that it is reviewed before it is simply rolled out into other areas.
21. Alternative Dispute Resolution can work well where more is required by an injured person than just momentary compensation for example an apology. It is not always as suitable for clinical negligence claims that have become protracted and where the defendant has been unwilling to engage, because the relationship between claimant and defendant has often broken down by this stage and trust has been lost.
22. APIL members report unwillingness on the part of the NHSLA to consider Alternative Dispute Resolution early in a claim before issues become entrenched and it becomes too late to resolve. December 2010
APPENDIX A
FINAL DRAFT (14) PRODUCED BY THE CDF WORKING GROUP FOR THE LAW SOCIETY
THE CLINICAL NEGLIGENCE PROTOCOL
A. Introduction
1. The Background to this Protocol
1.1 The first Protocol for the Resolution of Clinical Disputes was produced by the Clinical Disputes Forum, a multi-disciplinary body (now a registered charitable company) which was formed in 1997 in response to Lord Woolf’s Access to Justice reports. One of the aims of the Forum is to find less adversarial and more cost- effective ways of resolving disputes about healthcare and medical treatment, and the Clinical Disputes Pre- Action Protocol was its first major initiative, drafted after extensive consultation. At the request of the Civil Justice Council and the Law Society, the Forum has again taken the lead in consulting widely to draft this updated Protocol. 32 At the request of the CJC and with the assistance of the Law Society and Clinical Dispute Forum. 33 Page 38 Case track limits and the claims process for personal injury claims summary of responses. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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1.2 This Protocol (which is set out in Sections 4 to 13 inclusive below): — encourages a climate of openness when something has gone wrong with a claimant’s34 treatment or the claimant is dissatisfied with that treatment and/or the outcome. This reflects the requirements for clinical governance within healthcare; — provides general guidance on how this more open culture might be achieved when disputes arise, in accordance with a “cards-on-the- table” approach; and — recommends a timed sequence of steps for claimants and healthcare providers,35 and their advisers, to follow when a dispute arises. This should facilitate and speed up exchanging relevant information and increase the prospects that disputes can be resolved without resort to legal action. 1.3 This new version of the Protocol also takes into account developments in civil procedure since the Civil Procedure Rules 1998 (the CPR) were implemented, and in particular the terms of the Pre-Action Conduct Practice Direction introduced in April 2009 (the PACPD).36
2. The Aims of this Protocol 2.1 The general aims of the Protocol are: — to maintain and/or restore the claimant/healthcare provider relationship; and — to resolve as many disputes as possible without litigation. 2.2 Its specific objectives are:
Openness — to encourage early communication of the perceived problem between claimants and healthcare providers; — to encourage claimants to voice any concerns or dissatisfaction with their treatment as soon as practicable; — to encourage healthcare providers to develop systems of early reporting and investigation for serious adverse treatment outcomes and to provide full and prompt explanations, including an apology where appropriate, to dissatisfied claimants: such expressions of regret do not constitute an admission of liability in part or in full (the National Health Service Litigation Authority (NHSLA) guidance dated 1 May 2009 on apologies and explanations, as endorsed by other medical organisations, is set out at Annex C below); and — to ensure that sufficient information is disclosed by both parties to enable each to understand the other’s perspective and case, and to encourage early resolution.
Timeliness — to provide an early opportunity for healthcare providers to identify cases where an investigation is required and to carry out that investigation promptly; — to encourage primary and private healthcare providers to involve their defence organisations or insurers at an early stage; — to ensure that all relevant medical records are provided to claimants or their appointed representatives on request within 40 days as required by the Access to Health records Act 1990 and the Data Protection Act 1998; — to ensure that relevant records which are not in healthcare providers’ possession are made available to them by claimants and their advisers at an appropriate stage; — to identify a stage before issue of proceedings at which the parties should consider whether settlement discussions, whether by alternative dispute resolution (ADR) or otherwise, are appropriate; — where a resolution is not achievable, to lay the ground to enable litigation to proceed on a reasonable timetable, at a reasonable and proportionate cost, and to limit the matters in contention; and — to discourage the pursuit of unmeritorious claims and the prolonged defence of meritorious claims. 34 Although no assumption can or should be made that a patient will definitely turn into a claimant, we have chosen to use the word “claimant” (instead of “patient”) throughout this Protocol, which is after all about behaviour in relation to the bringing of claims. It must be remembered that the claim may be on behalf of a patient without capacity, or be triggered by the death of the “patient”, so that a litigation friend or relative will be the “claimant”. 35 In this protocol the phrase “healthcare provider” means those who are registered with or members of the General Medical Council, the Nursing and Midwifery Council, General Dental Council, Health Professions Council and the United Kingdom Public Health Register; and also any body or organisation, public or private, which employs such people or for whom such people work in providing healthcare services in England & Wales. No such definition appeared in the previous protocol. It may be preferred to set out the content of this and the previous footnote in the body of the revised protocol rather than leave these remarks as footnotes. 36 Jackson recommends repeal of the PACPD. If this happens, references will have to be deleted or amended to refer to any replacement PD. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Awareness of 0ptions — to ensure that claimants and healthcare providers are made aware of the available options to pursue and resolve disputes and what each might involve.
2.3 This Protocol does not attempt to be prescriptive about a number of related clinical governance issues which will have a bearing on any healthcare provider’s ability to meet the standards within the Protocol. Good clinical governance requires the following to be considered: (1) Clinical risk management: the Protocol does not provide any detailed guidance to healthcare providers on clinical risk management or the adoption of risk management systems and procedures. These are matters for the NHSLA, individual trusts and providers, including GPs, dentists and the private sector, including the Medical Defence Organisations. In Wales these are matters for the Welsh Risk Pool, Local Health Boards and Welsh Health Legal Services (WHLS). Effective, co- ordinated and focused clinical risk management strategies and procedures are essential for the management of risk and the early identification and investigation of adverse outcomes. (2) Adverse outcome reporting: the Protocol does not provide any detailed guidance on which adverse outcomes should trigger an investigation. However, healthcare providers should have in place procedures for such investigations, including recording of statements of key witnesses. These procedures should also cover when and how to inform claimants that an adverse outcome has occurred. Providers should also work with the National Patient Safety Agency on data collection on adverse incidents. (3) The professional’s duty to report: in his final report, Lord Woolf suggested that the professional bodies might consider changes to their codes of conduct to impose duties to report adverse incidents.. The General Medical Council has published guidance to doctors about their duties to report adverse incidents to the relevant authorities and co-operate with inquiries.
Where the Protocol fits in
2.4 Protocols serve the needs of potential litigants in setting out a code of good practice, and assisting with: — predictability in the time needed for necessary steps early in a dispute; — standardisation of the requirements for relevant information, including records and documents to be disclosed; and — creating an expectation that steps will be taken before issue of proceedings to facilitate early resolution of cases and/or to minimise the number of issues to be litigated.
2.5 It is recognised that contexts differ significantly. For example: — claimants tend to have an ongoing relationship with a general practitioner, more so than with a hospital; — clinical staff in the National Health Service are often employees, while those in the private sector may be contractors; and — providing records quickly may be relatively easy for GPs and dentists, but can be a complicated procedure in a large multi-department hospital.
2.6 This Protocol is intended to be sufficiently broadly based and flexible to apply to all sectors of healthcare, both public and private.
3. Enforcement of the Protocol and Sanctions for Non-Compliance37
3.1 This Protocol—when read with the CPR and the PACPD—is now regarded by the courts as setting the standard of normal reasonable pre-action conduct for clinical disputes.
3.2 If proceedings are issued, it is for the court to decide whether non-compliance with a Protocol merits sanctions. The PACPD explains and supports the Protocols, and sets out a list of sanctions which might be considered for non-compliance with any Protocol (see Section II paragraph 4 of the PACPD).
3.3 If the court has to consider the question of compliance after proceedings have begun, it may be less concerned with minor infringements, eg failure by a short period to provide relevant information. One minor breach will not entitle the “innocent” party to abandon the procedure set out in this Protocol. The court looks at the effect of non-compliance on the other party when deciding whether to impose sanctions. Additionally, the court can itself order a stay of proceedings where both parties have failed to observe the requirements of any Protocol, for example by failing unreasonably to consider ADR. 37 Jackson proposes pre-action applications to allege non-compliance. Such a move would apparently need primary legislation. If introduced, this will need amendment. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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B. The Protocol 4. The Shape of the Protocol 4.1 This Protocol is not a comprehensive code governing all the steps in clinical disputes. Rather it attempts to set out a code of good practice which parties should follow when litigation might be a possibility. 4.2 The commitments section (Section 5 below) of the Protocol summarises the guiding principles which healthcare providers and claimants and their advisers are invited to endorse when dealing with claimant dissatisfaction with treatment and its outcome, and with potential complaints and claims. 4.3 The steps section (Sections 7 to 10 below) sets out a recommended sequence of actions to be followed if litigation is in prospect, in a more prescriptive form.
5. Good Practice Commitments 5.1 Healthcare providers should: (1) ensure that key staff, including complaints, claims and risk managers, are adequately trained and have knowledge of healthcare law, complaints procedures, risk management and civil litigation practice and procedure appropriate to their roles; (2) develop an approach to clinical governance that ensures that clinical practice is delivered to commonly accepted standards and that this is routinely monitored through a system of clinical audit and clinical risk management (particularly adverse outcome investigation); (3) set up adverse outcome reporting systems in all specialties to record and investigate unexpected serious adverse outcomes as soon as possible. Such systems can enable evidence to be gathered quickly, which makes it easier to provide an accurate explanation of what happened and to defend or settle any subsequent claims; (4) use the results of adverse incidents and complaints positively as a guide to how to improve services to claimants in the future; (5) ensure that claimants receive clear and comprehensible information in an accessible form about how to raise their concerns or complaints; (6) establish efficient and effective systems of recording and storing claimant records, notes, diagnostic reports and X-rays, and to retain these in accordance with Department of Health guidance (currently for a minimum of eight years in the case of adults, all obstetric and paediatric notes for children until they reach the age of 25, and indefinitely for claimants lacking mental capacity); (7) advise claimants of a serious adverse outcome and provide on request to the claimant or the claimant’s representative an oral or written explanation of what happened, information on further steps open to the claimant, including where appropriate an offer of future treatment to rectify the problem, an apology, changes in procedure which will benefit claimants and/or compensation. Procedures for handling NHS complaints in Wales are under review and may be different.38 5.2 Claimants and their advisers should: (1) report any concerns and dissatisfaction to the healthcare provider as soon as is reasonable to enable that provider to offer clinical advice where possible, to advise the claimant if anything has gone wrong and take appropriate action; (2) consider the full range of options available following an adverse outcome with which a claimant is dissatisfied, including a request for an explanation, a meeting, a complaint, and other appropriate dispute resolution methods (including mediation) and negotiation, not only litigation; (3) inform the healthcare provider when the matter will not be pursued further or has been concluded: legal advisers should also notify the provider when they are no longer acting for the claimant, particularly if proceedings have not started.
6. Rehabilitation 6.1 The claimant or the healthcare provider or both shall consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other methods. 6.2 The parties shall consider in such cases how those needs might be addressed. The rehabilitation code (which is attached as Annex D) may be helpful in considering how to identify the claimant’s needs and how to address the cost of providing for those needs. 6.3 The time limits set out in Sections 7 to 10 of this Protocol shall not be shortened to allow these issues to be addressed, except by consent. 38 Wales currently proposes to introduce the NHS Redress Scheme effectively and its complaints system as from a date to be decided later in 2010. Whether this will indeed come about is still unclear, hence the guarded reference here to complaints systems in Wales. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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6.4 The provision of any report obtained for the purposes of assessment of provision of a party’s rehabilitation needs shall not be used in any litigation arising out of the subject-matter of the claim, save by consent.
7. Obtaining the Health Records39 7.1 Any request for records by the claimant should — provide sufficient information to alert the healthcare provider where an adverse outcome has been serious or had serious consequences; and —beasspecific as possible about the records which are required. 7.2 Requests for copies of the claimant’s clinical records should be made using the Law Society and Department of Health approved standard forms (Annex A to this Protocol), adapted as necessary. 7.3 The copy records should be provided within 40 days of the request and for a cost not exceeding the charges permissible under the Access to Health Records Act 1990 and the Data Protection Act 1998. Payment may be required in advance by the healthcare provider. 7.4 The claimant may also make a request under the Freedom of Information Act 2000. 7.5 Disclosable documents include those created by the healthcare provider in relation to any relevant adverse incident or complaint made by or on behalf of the claimant. They also include any relevant guidelines, protocols or policies. The claimant should make a specific request for all documents reasonably required for the initial investigation of the case. In birth injury cases, it is good practice for the healthcare provider to ensure that a continuous copy of the CTG trace is provided as part of the disclosure of health records. This should not result in any additional charge. 7.6 In the rare circumstances that the healthcare provider is in difficulty in complying with the claimant’s request within 40 days, the problem should be explained quickly and details given of what is being done to resolve it. 7.7 It will not be practicable for healthcare providers to investigate in detail each case when records are requested, particularly where insufficient detail is supplied in the request for records. But healthcare providers should adopt a policy as to which cases will be investigated (see paragraph 5.1 above on clinical governance and adverse outcome reporting and note also the provisions regarding commencing investigations in Sections 8 and 9 below). 7.8 If the healthcare provider fails to provide the health records within 40 days, the claimant can then apply to the court under the CPR Part 31.16 for an order for pre-action disclosure. The court has the power to impose costs sanctions for unreasonable delay in providing records. The claimant may also refer the matter to the Information Commissioner for a potential breach of the Data Protection Act 1998. 7.9 If either the claimant or the healthcare provider considers that additional health records are reasonably required from a third party, in the first instance these should be requested by or through the claimant. Third party healthcare providers are expected to co-operate. The claimant should provide to the defendant, within 40 days of a request, copies of relevant third party records in their possession. CPR Part 31.17 enables claimants and healthcare providers to apply to the court for pre-action disclosure by third parties. 7.10 Legible copies of the claimant’s medical records should be placed in an indexed and paginated bundle by the claimant at the earliest opportunity and kept up to date. If the healthcare provider requests copies of the claimant’s records including copies of relevant third party records the claimant should where requested provide the healthcare provider with a copy of the indexed and paginated bundle. The healthcare provider should agree to pay a reasonable copying charge in respect of the provision of the bundle.
8. The Letter of Notification40 8.1 This Section of the Protocol introduces a new intermediate stage, which follows on from obtaining the medical records, but is likely to arise before the claimant is in a position to send a Letter of Claim in accordance with Section 9 of this Protocol. This Section recognises that a healthcare provider may not be in a position to investigate every potential claim where the records have been requested. The aim of this new intermediate stage is to provide the claimant with an opportunity to send to the healthcare provider a Letter of Notification confirming that the case is one which is proceeding and to enable the provider(s) to consider whether this is a case in which they should now commence their investigations, if they have not done so already. 8.2 Annex B1 to this Protocol provides a template for the recommended contents of a Letter of Notification. The level of detail will need to be varied to suit the particular circumstances. 39 Note that Jackson proposes financial penalties where healthcare providers delay in providing records. 40 Jackson decided not to recommend a stage like this: see Final Report chapter 23, para 4.10 (p 240). We had already decided to propose it, and after debate still think that such a step will indeed be a good way for reducing both unnecessary defence investigations while promoting timely responses from the defence where claimants do decide to proceed with a case, even if they cannot yet compile a comprehensive Letter of Claim. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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8.3 Following the receipt and analysis of the records, and the receipt of an initial supportive medical report dealing with breach of duty and/or causation, the claimant should give consideration to sending a Letter of Notification to the healthcare provider as soon as practicable. 8.4 This letter should confirm that the case is one which is still being investigated and that it is premature to send a Letter of Claim in accordance with Section 9 below. It should however advise the healthcare provider that this is a case where the claimant has obtained supportive independent expert evidence about breach of duty and (if this has been obtained) causation and that the case is one which is likely to result in a Letter of Claim being sent in due course in accordance with Section 9. The claimant should at the same time send a copy of the Letter of Notification to the NHSLA, WHLS or other relevant Medical Defence Organisation or indemnity provider (where known). 8.5 The healthcare provider (and any defence organisation sent a copy of the Letter of Notification) should acknowledge any Letter of Notification within 14 days of receipt and should identify who will be dealing with the matter. 8.6 On receipt of a Letter of Notification the healthcare provider should then consider whether or not to undertake its own investigations into the case and whether or not to obtain its own factual and independent expert evidence, in anticipation of its having to respond to a Letter of Claim in due course.41 8.7 When subsequently considering whether any request by a healthcare provider for an extension of the time limit for a Letter of Response under Section 9 is reasonable, the claimant should have regard to whether a Letter of Notification was sent to the provider. 8.8 When considering the extent to which either party has complied with its obligations under this Protocol, including the extent to which it is reasonable for a healthcare provider to have an extension of time for its Letter of Response, the court should have regard to whether or not the claimant sent a Letter of Notification and to whether or not the healthcare provider initiated investigations upon receipt of any Letter of Notification. There should be a reasonable lapse of time between a Letter of Notification, which should only be sent where supportive expert evidence as to breach of duty and/or causation has been obtained, and any later Letter of Claim. Attempts to misuse this two-stage process may be met with costs sanctions.
9. The Letter pf Claim 9.1 Annex B2 to this Protocol provides a template for the recommended contents of a Letter of Claim. The level of detail will need to be varied to suit the particular circumstances. 9.2 If, following the receipt and analysis of the records, and the receipt of any further advice (including from experts if necessary—see Section 12 below), the claimant/adviser decides that there are grounds for a claim, they should then send, as soon as practicable, to the healthcare provider/potential defendant, a Letter of Claim. The claimant should at the same time send a copy of the Letter of Claim to the NHSLA, WHLS or other relevant Medical Defence Organisation or indemnity provider (where known). 42 9.3 This letter should contain a clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of breach of duty and causation. It should also describe the claimant’s injuries, and present condition and prognosis. The financial loss incurred by the claimant should be outlined, with an indication of the heads of damage to be claimed and the scale of the loss, unless this is impracticable. 9.4 It is expected that the claimant will have obtained independent expert evidence as to the breach of duty and causation of damage alleged in the Letter of Claim. 9.5 In lower value claims, where total damages are likely to be less than £25,000, particularly where claimants have recovered from their injuries, details of the injuries and losses should be provided as soon as is practicable, including where appropriate an expert’s condition and prognosis report. 9.6 In more complex cases, a chronology of the relevant events should be provided, particularly if the claimant has been treated by a number of different healthcare providers. 9.7 The Letter of Claim should refer to any relevant documents, including health records, and if possible enclose copies of any of those which will not already be in the potential defendant’s possession with an index of those records, eg any relevant general practitioner records if the claimant’s claim is against a hospital. 9.8 Sufficient information must be given to enable the healthcare provider defendant to commence investigations (if not already started following a Letter of Notification) and to put an initial valuation on the claim. 41 Jackson suggests that receipt of a Letter of Claim should trigger independent expert advice being sought by the defence. The purpose of a Letter of Notification is to bring the start of defence investigations earlier, for the benefit of both sides. 42 Sending copies of any Letter of Notification and Claim to the NHSLA or relevant MDO was something we had already suggested before it was recommended in Jackson. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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9.9 Letters of Claim are not intended to have the same formal status as Particulars of Claim, nor should any sanctions necessarily apply if the Letter of Claim and any subsequent statement of case in the proceedings differ. 9.10 Proceedings should not be started until at least four43 months from the letter of claim, unless there is a limitation problem and/or the claimant’s position needs to be protected by early issue. 9.11 Claimants or their advisers may want to make an offer to settle the claim at this early stage by putting forward an amount of compensation which would be satisfactory (possibly including any costs incurred to date). If an offer to settle is made, generally this should be supported by a medical report which deals with the injuries, condition and prognosis, and by a schedule of loss and supporting documentation. The level of detail necessary will depend on the value of the claim. Medical reports may not be necessary where there is no significant continuing injury, and a detailed schedule may not be necessary in a low value case. CPR Part 36 sets out the legal and procedural requirements for making offers to settle. 9.12 Every claimant who has Legal Services Commission funding, or has entered into any funding arrangement, should comply with the obligations to serve notices thereof as set out in the CPR and Practice Directions.
10. The Response 10.1 Annex B3 provides a template for the suggested contents of the Letter of Response. 10.2 The healthcare provider (and any defence organisation sent a copy of the Letter of Claim) should acknowledge any Letter of Claim within 14 days of receipt and should identify who will be dealing with the matter. 10.3 The healthcare provider should, within four44 months of receipt of the Letter of Claim (or such other further period as may be agreed with the claimant) provide a reasoned answer. The claimant should generally agree to a reasonable extension of time if the healthcare provider puts forward good reasons for such an extension, particularly in a claim that is of high value and/or of a complex nature. 10.4 It is good practice for the healthcare provider to have obtained independent expert evidence where either breach of duty and/or causation are denied in its Letter of Response. 10.5 If the claim is admitted the healthcare provider should say so in clear terms and in particular which alleged breaches of duty and causation are admitted and why. 10.6 If only part of the claim is admitted the healthcare provider should make clear which issues of breach of duty and/or causation are admitted and which are denied and why. CPR Part 14.1A applies to the status of admissions made before commencement of proceedings. 10.7 If a healthcare provider wishes to explore settlement without any admission of liability, then this should be conveyed to the claimant and/or his/her representatives, who should consider agreeing a reasonable request for a period of time in order to try to resolve the claim without the need for legal proceedings to be issued45. 10.8 If the claim is denied, this should include specific comments on the allegations of negligence, and if a synopsis or chronology of relevant events has been provided and is disputed, the healthcare provider’s version of those events. 10.9 The Letter of Response is not intended to have the same formal status as a defence, nor should any sanctions necessarily apply if the Letter of Response and any subsequent defence in the proceedings differ. 10.10 Where additional documents are relied upon, eg an internal protocol or documents in relation to an adverse incident or a relevant complaint concerning the same claimant/ incident, copies should be provided. 10.11 If the claimant has made an offer to settle, the healthcare provider should respond to that offer at the same time as the Letter of Response, preferably with reasons. The healthcare provider may make its own offer to settle at this stage, either as a counter-offer to the claimant’s, or of its own accord, but should accompany the offer with any supporting medical report which deals with the injuries, condition and prognosis, and/or with any counter-schedule of loss and supporting documents which are in the healthcare provider’s possession. 10.12 If the parties do not reach agreement on liability, they should discuss whether the claimant should start proceedings and whether the court might be invited to direct an early trial of a preliminary issue or of breach of duty and causation. 43 The time limit of four months tallies with the recommendation in the Jackson report for the Letter of Response—see Section 10.3 below. In view of the new Letter of Notification procedure, coupled with the earlier reporting by independent experts, the four month limit may be achievable in appreciably more cases, without an extension being required. 44 The CDF Working Group debated the Jackson recommendation and finally agreed on the Jackson recommendation of four months: see footnote 8 above. 45 We inserted this before Jackson proposed it and agree with his recommendation, though we have not proposed his suggested three month moratorium. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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10.13 If following receipt of the Letter of Response the claimant and their adviser is aware that there may be a delay of six months or more before the claimant decides if, when and how to proceed, they should keep the healthcare provider generally informed. 10.15 If the parties reach agreement on liability, but time is needed to resolve the value of the claim, they should aim to agree a reasonable period. 10.16 In any event, where comprehensive settlement (as to breach of duty, causation and quantum) does not take place as a result of receipt of the Letter of Response and before the issue of proceedings, the parties should consider the use of ADR.
11. Alternative Dispute Resolution (ADR) 11.1 Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored. Although ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings. The court may require evidence that the parties considered some form of ADR. 11.2 It would not be practicable for this Protocol to address in any detail how a claimant or their adviser, or healthcare provider, might decide which method to adopt to resolve the particular problem. But the courts increasingly expect parties to try to settle their differences by agreement before issuing proceedings. 11.3 Summarised below are the main alternative processes for resolving clinical disputes: — In England, the NHS Complaints Procedure, which is designed to provide claimants with an explanation of what happened and an apology if appropriate. It is not designed to provide compensation for cases of negligence.46 However, claimants might choose to use the procedure if their only, or main, goal is to obtain an explanation, or to obtain more information to help them decide what other action might be appropriate. A complaint may be pursued at the same time as or in addition to a claim for negligence; — In Wales, its own relevant NHS complaints procedure; — Discussion and negotiation, including round-table meetings;47 — Mediation, which is a form of facilitated negotiation assisted by an independent neutral party. It is suitable in many cases, including on occasions pre-action. The CPR give the court the power to stay proceedings for one month for settlement discussions or mediation and sometimes the courts go further at a case management conference and recommend parties to attempt mediation. The CDF has published a Guide to Mediation which will assist: this is generally available on the CDF website at www.clinicaldisputesforum.org.uk. — Other methods of resolving disputes, which include arbitration, determination by an expert, and early neutral evaluation by a medical or legal expert. 11.4 The Legal Services Commission has published a booklet on “Alternatives to Court” (LSC August 2000, CLS information leaflet number 23) which lists a number of organisations that provide alternative dispute resolution services. The National Mediation Helpline on 0845 603 0809 or at www.nationalmediationhelpline.com. and mediation providers can provide information about mediation. 11.5 The parties should continue to consider the possibility of reaching a settlement at all times. This still applies after proceedings have been started, up to and during any trial or final hearing. Most disputes are resolved by agreement, even after proceedings have been issued. Parties should bear in mind that carefully planned face-to-face meetings, with or without a mediator, may be particularly helpful in exploring further treatment for the claimant, in reaching understandings about what happened and over both parties’ positions, in narrowing the issues in dispute, perhaps in involving the relevant clinicians, and, if the timing is right, in helping to settle the whole matter, especially if the claimant wants an apology, explanation, or assurances about how other claimants will be affected.
12. Experts 12.1 In clinical negligence disputes, expert opinions may be needed: — on breach of duty and causation; — on the claimant’s condition and prognosis; and — to assist in valuing aspects of the claim. 12.2 The CPR encourage economy in the use of experts and a less adversarial expert culture.Itis recognised that in clinical negligence disputes, the parties and their advisers will require flexibility in their approach to expert evidence. The parties should cooperate about decisions on whether and which experts might 46 Jackson recommends implementation of NHS Redress, and indeed this is due to be introduced in Wales. Future amendment may become necessary to this sentence. 47 Also often called joint settlement meetings, though sometimes they are convened to debate discontinuance rather than settlement. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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be instructed jointly, and on whether reports might be disclosed sequentially or by exchange and at what stage. The Protocol does not require the claimant to disclose expert evidence with the letter of claim-the claimant and their adviser may choose to do so when they wish to rely upon that evidence, particularly a report on the claimant’s condition and prognosis. Sharing expert evidence will often be appropriate on issues relating to the value of the claim. 12.3 Obtaining expert evidence will often be an expensive step and may take time, especially in specialised areas of medicine where there are limited numbers of suitable experts. Claimants and healthcare provider and their advisers, will therefore need to give careful and early consideration as to how best to obtain any necessary expert help quickly and cost-effectively. 12.4 In Wales, expert reports may be obtained through the Speedy Resolution Scheme introduced in 2005.
13. Limitation of Actions 13.1 If by reason of complying with any part of this Protocol a claimant’s claim may be time-barred under any provision of the Limitation Act 1980 or any other legislation which imposes a time limit for bringing an action, the claimant may commence proceedings without complying with this Protocol, but should then apply to the court on notice at the time that proceedings are issued for directions as to the timetable and form of procedure then to be adopted. The court will then consider whether to order a stay of the whole or part of the proceedings pending compliance with the provisions of this Protocol.
Annex A
LAW SOCIETY AND DEPARTMENT OF HEALTH STANDARD FORMS FOR OBTAINING HEALTH RECORDS [the current versions of these documents for both England and (where different, as they currently are) Wales will need to be inserted here in any final published version.]
Annex B
TEMPLATES FOR LETTERS OF NOTIFICATION, CLAIM AND RESPONSE
B1 Template for the Letter of Notification
Essential Contents The Letter of Notification should confirm:
1. The claimant’s name, address, date of birth, etc.;
2. Dates of allegedly negligent treatment;
3. Events giving rise to the claim, including: — a clear summary of the facts on which the claim is based; and — details of other relevant treatments to the claimant by other healthcare providers.
4. Which medical records have been obtained by the claimant. Where possible, details of the medical records obtained should be provided in the form of a document index in accordance with para 6.1 (if not provided previously) 5. Whether a supportive expert opinion has been obtained on either or both of breach of duty and causation. 6. That this is a case which is proceeding, but that it is premature for the claimant to send a Letter of Claim at this stage while further investigations remain pending. Where possible the claimant should give an approximate time estimate for provision of the Letter of Claim. 7. That the claimant may have reasonable needs that could be met by rehabilitation treatment or other measures. The Rehabilitation Code may be helpful in considering how to identify the claimant’s needs and how to address the cost of providing for those needs. 8. An invitation to the healthcare provider to consider commencing investigations into this case at this stage.
9. That failure to do so will be a factor that can be taken into consideration when considering the reasonableness or otherwise of any subsequent application for an extension of time for the Letter of Response.
10. When the claimant has Legal Services Commission funding or has entered into a funding arrangement (a conditional fee agreement within the meaning of CPR43.2(1)), details of this should be provided. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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B2 Template for the Letter of Claim Essential Contents The Letter of Claim should set out: 1. The claimant’s name, address, date of birth, etc. 2. Dates of allegedly negligent treatment. 3. Events giving rise to the claim, including: — a clear summary of the facts on which the claim is based; and — details of other relevant treatments to the claimant by other healthcare providers. 4. Allegations of breach of duty and causal link with injuries, including — an outline of the main allegations or a more detailed list in a complex case; — an outline of the causal link between the allegations and the injuries complained of; and — whether a supportive expert opinion has been obtained on either or both of breach of duty and causation. 5. Details of the claimant’s injuries, condition and future prognosis with a condition and prognosis report, if appropriate. 6. Request all clinical records (if not previously provided): — use the Law Society form if appropriate or adapt; — specify the records required; — if other records are held by other providers, and may be relevant, say so; and — state what investigations have been carried out to date, eg information from the claimant and witnesses, any complaint and the outcome, if any clinical records have been seen or experts advice obtained. 7. The likely value of the claim, including: — an outline of the financial loss incurred by the claimant together with the main heads of damage to be claimed; and — the scale of the loss, or, in lower value claims likely to be under £25,000 particularly where the claimant has recovered from their injuries, details of the injuries and losses should be provided as soon as practicable to enable the healthcare provider to commence investigations and put an initial valuation on the claim. 8. Documents relied upon: — In more complex cases a chronology of the relevant events should be provided particularly if the claimant has been treated by a number of different healthcare providers. — Any relevant documents should be referred to, including health records, and if possible enclose copies of those which will not already be in the healthcare provider’s possession. 9. Funding information: When the claimant has Legal Services Commission funding or has entered into a funding arrangement (a conditional fee agreement within the meaning of CPR43.2(1)) details of this should be provided. 10. Costs Incurred An estimate of the claimants costs incurred to the date of the letter of claim should be included.
Optional Information — What investigations have been carried out. — An offer to settle (open for acceptance until the Letter of Response is due to be served) with supporting medical evidence and/or a schedule of loss with supporting evidence if possible. — Suggestions for obtaining expert evidence. — Suggestions for meetings, negotiations, discussion or mediation. — Any reasonable needs not hitherto notified that could be met by rehabilitation treatment or other measures. The Rehabilitation Code may be helpful in considering how to identify the claimant’s needs and how to address the cost of providing for those needs.
Additional enclosures — Clinical records request form and claimant’s authorisation. — Expert report(s). cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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— Schedules of loss and supporting evidence, even where an offer is not being made.
B3 Template for the Letter of Response Essential Contents The Letter of Response should: 1. Provide requested records and invoice for copying: — explain if records are incomplete or extensive records are held and ask for further instructions; and — request additional records from third parties. 2. Comment on the events alleged and/or chronology: — if events are disputed or the healthcare provider has further information or documents on which they wish to rely, these should be provided, eg an internal Protocol; and — details of any further information needed from the claimant or third party should be provided. 3. (If this is so) set out that breach of duty and causation are accepted wholly or in part: — this should be set out in clear terms and in particular which alleged breaches of duty and causation are admitted or denied and why; and — suggestions might be made for resolving the claim and/or requests for further information. 4. (If this is so) set out that breach of duty and/or causation are denied: — a bare denial will not be sufficient. Specific responses to the allegations of breach of duty and causation should be given. If the healthcare provider has other explanations for what happened, these should be set out as fully as possible; — confirm whether any denial is based on receipt of independent expert evidence; and — suggestions might be made for the next steps, eg further investigations, obtaining expert evidence, meetings/negotiations or mediation, or an invitation to issue proceedings. 5. If this is so) set out that breach of duty and causation are denied but the healthcare provider nevertheless wishes to explore settlement, together with any proposals for a time period to be agreed by the parties to try and resolve the claim without the need for the issue of legal proceedings 6. The response to any offer to settle made by the claimant’s Letter of Claim should be given. 7. Costs If the claimant has requested details of the healthcare provider’s costs incurred to the date of the letter of response the healthcare provider should provide these details
Optional Matters — Make an offer to settle if the claimant has not made one, or a counter-offer to the claimant’s offer with supporting medical evidence and /or a counter-schedule of loss if appropriate
Possible enclosures: — Clinical records. — Annotated chronology. — Expert reports.
Annex C GUIDANCE OVER APOLOGIES BY DEFENDANTS 1 May 2009 To: Chief Executives and Finance Directors All NHS Bodies Dear Colleagues Apologies and Explanations I am pleased to report that the Authority’s letter of 15 August 2007, on providing apologies and explanations to patients or their relatives, has been updated and endorsed widely by other organisations, so it seemed appropriate to reissue it with those endorsements included. To ensure the widest possible distribution to staff in the NHS and beyond, the co-signatories have all incorporated links to this letter on their own websites. To reduce the possibility of misunderstandings by front-line staff, the original letter has been reworded slightly in places. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Apologies It is both natural and desirable for clinicians who have provided treatment which produces an adverse result, for whatever reason, to sympathise with the patient or the patient’s relatives; to express sorrow or regret at the outcome; and to apologise for shortcomings in treatment. It is most important to patients that they or their relatives receive a meaningful apology. We encourage this, and stress that apologies do not constitute an admission of liability. In addition, it is not our policy to dispute any payment, under any scheme, solely on the grounds of such an apology. Explanations Patients and their relatives increasingly ask for detailed explanations of what led to adverse outcomes. Moreover, they frequently say that they derive some consolation from knowing that lessons have been learned for the future. In this area, too, the NHSLA is keen to encourage both clinicians and NHS bodies to supply appropriate information whether informally, formally or through mediation. Explanations should not contain admissions of liability. For the avoidance of doubt, the NHSLA will not take a point against any NHS body or any clinician seeking NHS indemnity, on the basis of a factual explanation offered in good faith before litigation is in train. We consider that the provision of such information constitutes good clinical and managerial practice. To assist in the provision of apologies and explanations, clinicians and NHS bodies should familiarise themselves with the guidance on Being Open, produced by the National Patient Safety Agency and available at: www.npsa.nhs.uk/nrls/alerts-and-directives/notices/disclosure/ Formal Admissions In keeping with our financial and case management responsibilities, the NHSLA will make or agree the terms of formal admissions within or before litigation. This circular is intended to encourage scheme members and their employees to offer the earlier, more informal, apologies and explanations so desired by patients and their families. Medical Defence Organisations It is critically important to note that all of the above applies to the provision of NHS indemnity to NHS bodies and employees. Should any individual clinicians wish to adopt a particular policy vis-à-vis apologies and explanations, in a matter which might expose them to an action brought against them as an individual, they should seek the advice of their medical defence organisation and/or professional body. Staff Support We should not lose sight of the traumatic effect that adverse outcomes, and their aftermath, might have on NHS staff as well as on patients and their relatives. Some may find compliance with these recommendations cathartic or therapeutic; others will not. None will find compliance easy. Recognising this, employers should do whatever is necessary by way of offering training, support, counselling or formal debriefing. Yours sincerely Stephen Walker CBE Chief Executive NHSLA We endorse the NHSLA guidance on apologies and explanations. For many years we have advised our members that, if something goes wrong, patients should receive a prompt, open, sympathetic and above all truthful account of what has happened. Any patient who has had the misfortune to suffer through an error of whatever nature should receive a full explanation and a genuine apology. We encourage members to adopt this approach. There are no legal concerns about taking this course of action: it is quite different from admitting liability. Dr Michael Saunders Chief Executive Medical Defence Union Dr Stephanie Bown Director of Policy and Communications Medical Protection Society Dr Jim Rodger Head of Professional Services Medical and Dental Defence Union of Scotland Dr Peter Carter Chief Executive and General Secretary Royal College of Nursing Martin Fletcher Chief Executive National Patient Safety Agency cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Dr Hamish Meldrum Chairman of Council British Medical Association The GMC fully supports this advice from the NHSLA. If something goes wrong, patients deserve an apology and a full explanation. In Good Medical Practice we say “f a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened and the likely short-term and long-term effects.” Finlay Scott Chief Executive General Medical Council
Annex D THE 2007 REHABILITATION CODE While the Rehabilitation Code was put together primarily by claimants and insurers in relation to personal injury claims, it still has relevance for clinical disputes of all kinds and is thus reproduced as an Annex to the Clinical Disputes Protocol. Additions relating specifically to the Clinical Negligence Pre-action Protocol are in italics. The aim of this code is to promote the use of rehabilitation and early intervention in the compensation process so that the injured person makes the best and quickest possible medical, social and psychological recovery. This objective applies whatever the severity of the injuries sustained by the claimant. The Code is designed to ensure that the claimant’s need for rehabilitation is assessed and addressed as a priority, and that the process of so doing is pursued on a collaborative basis by the claimant’s lawyer and the compensator. Therefore, in every case, where rehabilitation is likely to be of benefit, the earliest possible notification to the compensator of the claim and of the need for rehabilitation will be expected.
1. Introduction 1.1 The purpose of the personal injury claims process is to put the individual back into the same position as he or she would have been in, had the accident not occurred, insofar as money can achieve that objective. The purpose of the Rehabilitation Code is to provide a framework within which the claimant’s health, quality of life and ability to work are restored as far as possible before, or simultaneously with, the process of assessing compensation. 1.2 Although the Code is recognised by the Personal Injury Pre-Action Protocol (and now also the Clinical Disputes Pre-action Protocol), its provisions are not mandatory. It is recognised that the aims of the Code can be achieved without strict adherence to the terms of the Code, and therefore it is open to the parties to agree an alternative framework to achieve the early rehabilitation of the claimant. 1.3 However, the Code provides a useful framework within which claimant’s lawyers and the compensator can work together to ensure that the needs of injured claimants are assessed at an early stage. 1.4 In any case where agreement on liability is not reached it is open to the parties to agree that the Code will in any event operate, and the question of delay pending resolution of liability should be balanced with the interests of the injured party. However, unless so agreed, the Code does not apply in the absence of liability or prior to agreement on liability being reached. 1.5 In this code the expression “the compensator” shall include any loss adjuster, solicitor or other person acting on behalf of the compensator (and any healthcare provider, the NHSLA, WHLS, the Welsh Risks Pool, any MDO or any other indemnifying organisation).
2. The Claimant’s Solicitor 2.1 It should be the duty of every claimant’s solicitor to consider, from the earliest practicable stage, and in consultation with the claimant, the claimant’s family, and where appropriate the claimant’s treating physician(s), whether it is likely or possible that early intervention, rehabilitation or medical treatment would improve their present and/or long term physical and mental well being. This duty is ongoing throughout the life of the case but is of most importance in the early stages. 2.2 The claimant’s solicitor will in any event be aware of their responsibilities under section 4 of the Pre- Action Protocol for Personal Injury Claims and the Pre-Action Protocol for Clinical Negligence. 2.3 It shall be the duty of a claimant’s solicitor to consider, with the claimant and/or the claimant’s family, whether there is an immediate need for aids, adaptations, adjustments to employment to enable the claimant to keep his/her existing job, obtain suitable alternative employment with the same employer or retrain for new employment, or other matters that would seek to alleviate problems caused by disability, and then to communicate with the compensators as soon as practicable about any such rehabilitation needs, with a view to putting this Code into effect. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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2.4 It shall not be the responsibility of the solicitor to decide on the need for treatment or rehabilitation or to arrange such matters without appropriate medical or professional advice. 2.5 It is the intention of this Code that the claimant’s solicitor will work with the compensator to address these rehabilitation needs and that the assessment and delivery of rehabilitation needs shall be a collaborative process. 2.6 It must be recognised that the compensator will need to receive from the claimants’ solicitors sufficient information for the compensator to make a proper decision about the need for intervention, rehabilitation or treatment. To this extent the claimant’s solicitor must comply with the requirements of the Pre-Action Protocol to provide the compensator with full and adequate details of the injuries sustained by the claimant, the nature and extent of any or any likely continuing disability and any suggestions that may have already have been made concerning the rehabilitation and/or early intervention. 2.7 There is no requirement under the Pre-Action Protocol, or under this code, for the claimant’s solicitor to have obtained a full medical report. It is recognised that many cases will be identified for consideration under this Code before medical evidence has actually been commissioned or obtained.
3. The Compensator 3.1 It shall be the duty of the compensator, from the earliest practicable stage in any appropriate case, to consider whether it is likely that the claimant will benefit in the immediate, medium or longer term from further medical treatment, rehabilitation or early intervention. This duty is ongoing throughout the life of the case but is most important in the early stages. 3.2 If the compensator considers that a particular claim might be suitable for intervention, rehabilitation or treatment, the compensator will communicate this to the claimant’s solicitor as soon as practicable. 3.3 On receipt of such communication, the claimant’s solicitor will immediately discuss these issues with the claimant and/or the claimant’s family pursuant to his duty set out above. 3.4 Where a request to consider rehabilitation has been communicated by the claimant’s solicitor to the compensator, it will usually be expected that the compensator will respond to such request within 21 days. 3.5 Nothing in this or any other code of practice shall in any way modify the obligations of the compensator under the Protocol to investigate claims rapidly and in any event within 3 months (except where time is extended by the claimant’s solicitor) from the date of the formal claim letter. It is recognized that, although the rehabilitation assessment can be done even where liability investigations are outstanding, it is essential that such investigations proceed with the appropriate speed.
4. Assessment 4.1 Unless the need for intervention, rehabilitation or treatment has already been identified by medical reports obtained and disclosed by either side, the need for and extent of such intervention, rehabilitation or treatment will be considered by means of an assessment by an appropriately qualified person. 4.2 An assessment of rehabilitation needs may be carried out by any person or organisation suitably qualified, experienced and skilled to carry out the task. The claimant’s solicitor and the compensator should endeavour to agree on the person or organisation to be chosen. 4.3 No solicitor or compensator may insist on the assessment being carried out by a particular person or organisation if (on reasonable grounds) the other party objects, such objection to be raised within 21 days from the date of notification of the suggested assessor. 4.4 The assessment may be carried out by a person or organisation which has a direct business connection with the solicitor or compensator, only if the other party agrees. The solicitor or compensator will be expected to reveal to the other party the existence of and nature of such a business connection.
5. The Assessment Process 5.1 Where possible, the agency to be instructed to provide the assessment should be agreed between the claimant’s solicitor and the compensator. The method of providing instructions to that agency will be agreed between the solicitor and the compensator. 5.2 The assessment agency will be asked to carry out the assessment in a way that is appropriate to the needs of the case and, in a simple case, may include, by prior appointment, a telephone interview but in more serious cases will probably involve a face to face discussion with the claimant. The report will normally cover the following headings:- 1. The injuries sustained by the claimant. 2. The current disability/incapacity arising from those Injuries. Where relevant to the overall picture of the claimant’s needs, any other medical conditions not arising from the accident should also be separately annotated. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3. The claimant’s domestic circumstances (including mobility accommodation and employment) where relevant. 4. The injuries/disability in respect of which early intervention or early rehabilitation is suggested. 5. The type of intervention or treatment envisaged. 6. The likely cost. 7. The likely outcome of such intervention or treatment.
5.3 The report should not deal with issues relating to legal liability and should therefore not contain a detailed account of the accident circumstances or the circumstances giving rise to the alleged breach of duty.
5.4 In most cases it will be expected that the assessment will take place within 14 days from the date of the letter of referral to the assessment agency.
5.5 It must be remembered that the compensator will usually only consider such rehabilitation to deal with the effects of the injuries that have been caused in the relevant accident or incident and will normally not be expected to fund treatment for conditions which do not directly relate to the accident or incident unless the effect of such conditions has been exacerbated by the injuries sustained in the accident or incident.
6. The Assessment Report
6.1 The report agency will, on completion of the report, send copies on to both the claimant’s solicitor and compensator simultaneously. Both parties will have the right to raise questions on the report, disclosing such correspondence to the other party.
6.2 It is recognised that for this assessment report to be of benefit to the parties, it should be prepared and used wholly outside the litigation process. Neither side can therefore, unless they agree in writing, rely on its contents in any subsequent litigation.
6.3 The report, any correspondence related to it and any notes created by the assessing agency to prepare it, will be covered by legal privilege and will not be disclosed in any legal proceedings unless the parties agree. Any notes or documents created in connection with the assessment process will not be disclosed in any litigation, and any person involved in the preparation of the report or involved in the assessment process, shall not be a compellable witness at Court. This principle is also set out in paragraph 4.4 of the Pre-Action Protocol and is agreed also to be applicable to clinical disputes.
6.4 The provision in paragraph 6.3 above as to treating the report etc as outside the litigation process is limited to the assessment report and any notes relating to it. Any notes and reports created during the subsequent case management process will be covered by the usual principle in relation to disclosure of documents and medical records relating to the claimant.
6.5 The compensator will pay for the report within 28 days of receipt.
6.6 This code intends that the parties will continue to work together to ensure that the rehabilitation which has been recommended proceeds smoothly and that any further rehabilitation needs are also assessed.
7. Recommendations
7.1 When the assessment report is disclosed to the compensator, the compensator will be under a duty to consider the recommendations made and the extent to which funds will be made available to implement all or some of the recommendations. The compensator will not be required to pay for intervention treatment that is unreasonable in nature, content or cost or where adequate and timely provision is otherwise available. The claimant will be under no obligation to undergo intervention, medical or investigation treatment that is unreasonable in all the circumstances of the case.
7.2 The compensator will normally be expected to respond to the claimant’s solicitor within 21 days from the date upon which the assessment report is disclosed as to the extent to which the recommendations have been accepted and rehabilitation treatment would be funded and will be expected to justify, within that same timescale, any refusal to meet the cost of recommended rehabilitation.
7.3 If funds are provided by the compensator to the claimant to enable specific intervention, rehabilitation or treatment to occur, the compensator warrants that they will not, in any legal proceedings connected with the claim, dispute the reasonableness of that treatment, nor the agreed costs, provided of course that the claimant has had the recommended treatment. The compensator will not, should the claim fail or be later discontinued, or any element of contributory negligence be assessed or agreed, seek to recover from the claimant any funds that they have made available pursuant to this Code. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Written evidence from Browne Jacobson LLP (CAL 29) Browne Jacobson response to the Commons health select committee inquiry into the sharp rise in complaints against the NHS and the reasons behind the inflation of litigation costs in recent years.
Draft Response This submission is submitted by Browne Jacobson LLP in its own capacity as lawyers regularly instructed on behalf of those in the health sector, including the NHS.
Summary — We doubt that the rise in complaints is unique to the NHS. — We consider that complaints investigation is often difficult and protracted because of the skills and seniority of the investigators combined with a failure by clinicians to engage fully, often due to lack of time and also because questions put by complainants are not always framed in a meaningful way. — Costs have undoubtedly been inflated by CFAs. — Experts’ costs are also now a significant proportion of the expense of any claim. — The Courts have not controlled costs through aggressive case management.
The reasons for the recent sharp rise in NHS complaints Whilst it is noted that the NHS Information Centre recently reported over 100,000 complaints in 2009–10— an increase of 13.4%—this needs to be contrasted against the general increase in NHS activity—up 28% from 1998–99 and 2008–09. The Committee will no doubt consider whether people are, in general, more inclined to complain now compared to a decade ago. We note that complaints to the Financial Ombudsman are up by 119% in the last year. Similarly the Housing Ombudsman has seen a 43% increase in complaints and in May the Press Complaints Commission reported a seven-fold increase in annual complaints. The Committee should not, therefore, see this as something unique to the NHS. The data published by the NHS Information Centre reveals that there were 10,710 complaints re appointments and cancellations, 1,020 re communication and 12,331 re attitude of staff compared to 42,727 regarding clinical treatment. This demonstrates that a significant proportion relate to “customer care issues” and a perceived failure to meet expectations rather than adverse outcomes. We regularly defend the NHS against claims for compensation following alleged clinical negligence. It is our belief that allowing a complaint to continue notwithstanding the patient intimating a claim for compensation must have increased the number of complaints. This change in approach ignores the fact that complainants intending to make a claim will never be satisfied with the complaint response, and they do not “buy in” to the complaint process because resolution of the complaint is not their primary or only goal. The complaints process is used as a test bed for clinical negligence claims, and indeed the LSC do, we believe, require a litigant to pursue a complaint before funding will be granted. Thus, the number of complaints does in part reflect the fact that patients are encouraged to use it by increasing numbers of lawyers who have ventured into the clinical negligence market (for “market” it now is as a result of CFAs and success fees). Combined with increased advertising and much increased awareness resulting from high profile negligence claims, we believe that the upward trend is set to continue. The effect of the Staffordshire Inquiry cannot, in our view, be underestimated. Whilst patients once simply complained to their family and friends about the standard of housekeeping, or poor nursing care, they are now aware that such matters are possible bases for a claim, even where their health problem has, in fact, been resolved. They will visit a solicitor who may or may not agree that the complaint justifies a claim but who can find some other basis for a claim. Thus, we are seeing more claims connected to nursing care, and claims which are very difficult to investigate and to defend (because of the burden of proof and the fact that the patient’s lay evidence is always more potent than that of healthcare staff who cannot recall the patient and the treatment given) yet of low value. For example, we are presently dealing with a case involving an elderly woman who was dying. It is alleged that nurses did not take adequate care to avoid bed sores developing. It is felt that the sores would have developed in any event, yet to prove this, and to take statements from every nurse who cared for the patient, from the tissue viability team, the consultant and other doctors, would be grossly disproportionate to the value of the claim. For the claimant’s solicitor, however, such a claim is valuable, if it can be “worked up” before the claim is notified to the NHS, and carry a success fee. It is the case, also, that most courses of treatment include some episode of care which is less than optimal and which most people would be happy to overlook in light of a good outcome and good overall care yet capable of being negligent. Such cases are now seen as valuable to a claimant lawyer if they can be “worked up” into a claim worth at least a few thousand pounds. A case in which a slight delay (identified by a balance of expert opinion) caused a patient to die one day earlier than he should have done will result in a claim worth at least £12,500.00. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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At least one firm we deal with acts for road traffic accidents victims and it is clear to us that they are instructing their medical experts to advise whether there is any evidence of clinical negligence. Thus, we quite often find claims for delay in diagnosing a fracture caused by an RTA. Similar claims can arise out of employers’ liability claims. In one case we faced a claimant who had settled his claim against his employer at a discount for contributory negligence ie for the full value of his claim, and then he brought a second claim for clinical negligence attempting to recover the discounted sum. His solicitor had, therefore, prosecuted a claim on behalf of his client despite knowing that his client had been under compensated only to the extent that the injury was his own fault. We successfully applied for the claim to be struck out, but the case demonstrates the lengths to which some claimant firms will go to generate a claim. That is not necessarily to say the claims are not justified, only that the market in clinical negligence is extremely lucrative. The Committee will also no doubt consider the extent to which the data is skewed by double-counting. If a patient’s main complaint is about the outcome of his operation but he also mentions concerns over the length of time spent on the waiting list, the attitude of staff and hospital food, is that 1 complaint or 4 complaints? We believe that more sophisticated coding techniques may now break down a complaint into multiple complaints in this fashion.
The effectiveness of the new complaints system introduced on 1 April 2009 In many cases that subsequently cross our desks in the form of claims the complaints process has not been able to get to the bottom of the issues. We often see that in response to a request for comment from the Complaints Officer, clinicians simply regurgitate the chronological history and do not address the complainant’s concerns. (It is fair to say that it is by no means easy to understand what those concerns are in some cases.) This stonewalling approach is effective unless the Complaints Officer is equipped with the skills, experience and influence to press for a detailed response. We believe that clinicians need to take a rounded view when responding to complaints. We also consider it inappropriate to expect complaints teams, as presently constructed with their current workloads to investigate and provide an appropriate response. The problems are partly due to the grade, seniority and experience of complaints officers. The best performers are officers who have grown up with the Trust but many of those are now retiring. We have some local officers who are excellent at analysing the key issues and they make a big difference. In our view effective investigation requires an inquiring approach to include asking questions/ challenging clinicians’ responses. That said, in many of the cases that we see we do not think it would have been possible to get to the bottom of the complaint without a detailed multidisciplinary investigation followed by forensic reflection and analysis. The expectations of and time limits set by the complaints process are hopelessly optimistic in such cases. Investigations are often frustrated by the fact that people have moved on and Trusts seem to be unable to trace them. Also, these witnesses have little or no interest in assisting. Importantly, as far as we are aware, NHS staff are under no obligation to cooperate in an investigation. If they are, we have seen no evidence that such obligations are enforced through peer pressure (any attempt to enforce cooperation through disciplinary means would be completely counter-productive and, in our view, of no use). We have seen an improvement in the wording and structure of complaint responses recently but there is still a tendency to cut and paste clinicians’ comments which can sometimes result in a misleading and confusing response with the added risk that it sounds hollow to the patient. It is also the case that the NHS feels obliged to apologise to any dissatisfied patient even where it has done nothing wrong. That will frequently prompt a trip to a solicitor who can sometimes find a potential claim which has a risk value to the Defendant (even if, in fact, unmeritorious). We wonder whether it might be possible to grade complaints into say non-clinical, technical and mixed. This would enable investigation to be streamed to an appropriate level of investigator. Another possibility would be for each department at the Trust to have an officer responsible for managing and investigating complaints. That would enable much better integration with the Risk Management process. Our experience tends to suggest that there are still difficulties learning from previous adverse events. It takes a long time for complaints/claims to resolve by which time practice has often moved on anyway. We also see problems attributed to the wrong cause because it is only when you are able to undertake a detailed investigation that you really get to the heart of the issues and understand what really went wrong. For example, in one case we dealt with the Trust’s internal report concluded that the patient died because of inappropriate care provided by a doctor who had since left the Trust. In preparing for the Inquest the doctor in question was traced and, along with the family and Coroner, provided with a copy of the report. He had not been spoken to during the investigation and was unaware of the report. At the inquest it became clear that the death was not due to any fault on the part of the doctor or any other healthcare professional, yet for 2 years the family had believed their relative had died unnecessarily because of the actions of the doctor in question. Alternatively Trusts might consider combining their complaints and Serious Untoward Incident investigation functions. It seems odd that if the patient complains the complaints team will investigate yet in those cases cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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where the Trust itself identifies a problem another (and often more senior) team investigates. Of course there are also those cases where the investigations run in parallel, which is rarely helpful. Have things improved? We represented Trusts in two of three linked inquiries relating to Dr Ayling, Drs Kerr and Haslam and Mr Neale, looking at the complaints process in general. In the Neale inquiry we submitted, on behalf of our client Trust, that the people charged with investigating complaints were not sufficiently senior and lacked the necessary skilled to handle complaints effectively. We believe that that situation has improved but the fact is that investigation of some complaints, involving complex clinical issues, do require considerable experience and a certain skill set which is not common. We should point out that even where Trusts carry out a full investigation with the full cooperation of clinicians a complaint can be rejected and yet later, once we have had the luxury of a more detailed but lengthy and expensive investigation, it becomes clear that the Trust was at fault.
The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman We should have like to have commented on this issue but have not been able to collate evidence from our client Trusts in the time available to enable us to do so.
The role of Patient Advice and Liaison Services as a “gateway” to the complaints system We suspect that many patients find this service helpful but that their skills are limited and they may struggle in the more complex claims to master the technical detail.
The failure of some Foundation Trusts to report numbers of complaints This is poor. We appreciate that FT response is voluntary and we note that 18 FTs failed to submit data to the NHS Information Centre. That should be addressed and reporting made mandatory.
The government’s plans for future complaints-handling arrangements We should have like to have commented on this issue but have not been able to collate evidence from our client Trusts in the time available to enable us to do so.
How data from complaints will feed into the government’s planned new commissioning arrangements. We should have like to have commented on this issue but have not been able to collate evidence from our client Trusts in the time available to enable us to do so.
The cost of litigation against the NHS The NHSLA Annual Report and Accounts 2009/10 confirm: — NHSLA received 6,652 new clinical claims and 4,074 non-clinical claims both up around 9% on the previous year. — Damages paid in clinical cases was £786,038. — Damages paid in non-clinical cases was £33,952. — Claimants’ legal costs in clinical cases was £121,487. Defendants’ legal costs in clinical cases was £42,233—34% of the Claimant’s costs.
Reasons for the inflation of litigation costs in recent years The problem is not unique to the NHS and it is something that has concerned defendants and their insurers for some time. The introduction of Conditional Fee Agreements has become big business and something of a gravy train for claimant solicitors and counsel. Comparison of the costs paid by NHSLA to claimant solicitors compared to its own panel solicitors as evidenced above is a good example of the problem. We have seen a large increase in expert costs. Claimant solicitors involve their experts at almost every turn. One wonders how claimant solicitors justify such high hourly rates when one considers they have their hands held so tightly by counsel and experts. Experts are an expensive commodity. It is not unusual for an expert to be charging £250 an hour. In a clinical negligence case each expert’s fees can easily reach £2,500 to £3,500 for a report followed by additional charges for all additional work required. In our view the Courts have been unable to control the cost of litigation through aggressive case management. We are encouraged by the current pilot in the Royal Courts of Justice that would see budgets set for clinical negligence cases at the outset. Combined with the recommendations of Lord Jackson and Lord Young we hope to see improvements in the management and control of legal costs. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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The impact of conditional fee (“no win, no fee”) arrangements on litigation against the NHS We believe that CFAs often result in a windfall of profit for the Claimant’s solicitors. A solicitor can enter into a CFA at the outset, assessing the case as of high risk and justifying a 100% uplift or “success fee” even though he has nothing more than the information provided by the patient. Many of these cases subsequently turn out to be very low risk for the Claimant but the original success fee applies. The reward does not reflect the risk. The position is compounded by the Claimant’s practice of cherry-picking which cases they take on/ continue with. Most CFAs allow the solicitors to back out if evidence suggests the case has low prospects of success. We therefore see the majority of cases are taken on with a 100% success fee. Those that subsequently appear weak are jettisoned. So instead of being left with a mixed basket of cases with a spread of risk, the Claimant’s lawyer has only those of low risk but nonetheless the maximum 100% success fee. The additional liabilities attached to cases funded by way of CFA (and after the event insurance) have led to a fear of defending cases. It is not uncommon for costs to be grossly disproportionate in cases worth less than £100,000. This is a dangerous situation because inevitably when Claimants see weaker claims settled they will be more cavalier when considering whether or not to take on similar cases in the future.
The effect of litigation on the development of an open reporting and learning culture in the NHS It is not possible to create a truly open reporting and learning culture when NHS staff, including consultants, fear the ramifications of a finding of negligence. A Trust can admit liability without the permission of the “guilty” individual. An admission can lead to a patient complaining to the GMC and although made for the purposes of the proceedings only the admission is good evidence of wrongdoing as far as the GMC or other disciplinary body is concerned. Press interest is feared. In one matter we had to take the unusual step of obtaining an anonymity order for an NHS witness called to give evidence at an inquest. Other staff have been hounded by aggrieved patients.
The government’s intentions regarding the implementation of the NHS Redress Act 2006 We expect that Claimant solicitors will publicly support the idea but privately will be concerned that any changes do not impact on their work streams. To work the new system will have to be mandatory and not allow room for the Claimant to circumvent the scheme by issuing proceedings. However, it should be recognised that the existence of such a scheme will undoubtedly result in many more claims from individuals who have no legal representation and we predict that that will result in payments being made for lack of evidence rather than on the merits. Also, dissatisfied claimants will use the process in the same way as the complaints process and having received an offer will then go to a solicitor who will take the case on and claim twice as much again. We think that a small claims process is needed but it will very difficult to exclude the role of claimant lawyers within it. It may be possible to identify certain classes of claim that should fall into such scheme rather than adopting a financial limit. This would avoid the inevitable legal wrangles as to whether a claim fell inside or outside the scheme. Cases do not have a value pinned to them at the outset. A claim apparently worth 5k can be transformed into a claim worth 100k part way through the litigation process. December 2010
Written evidence from the Health Service Ombudsman (CAL 31) As Health Service Ombudsman for England, I very much welcome the Committee’s Inquiry into Complaints and Litigation and value the opportunity to submit written evidence to the Committee. My detailed responses to the particular issues identified by the Committee are attached. In summary: — The new complaints system introduced on 1 April 2009 is quicker, simpler and more effective than the previous system. It is already demonstrating its potential and needs to be given time to prove its worth. — The NHS needs to listen harder and learn more about complaints. When it fails to do so it is missing a rich source of insight and information that is freely and readily available and comes directly from service users. — The poor quality and inconsistent information about complaints produced by the NHS diminishes learning within the NHS and impedes access to choice for patients. Clear and consistent information about complaints should be part of the Government’s Information Revolution. — It is important to consider the complaints and litigation systems in the round in order to achieve an approach which is user-centred, effective and fair. Sometimes the best outcomes are achieved when the complaints and claims system work together. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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I stand ready to assist the Committee with the Inquiry in any way I can and to offer further written or oral evidence if the Committee would find that useful. Please do not hesitate to contact me if you require any additional information or clarification.
The reasons for the recent sharp rise in NHS complaints 1. The increase in written complaints about hospital and community health services from 89,139 in 2008–09 to 101,077 in 2009–10, as reported by the Information Centre for Health and Social Care, does not come as a surprise. 2. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, which came into effect on 1 April 2009, imposed stricter requirements for recording NHS complaints. The Regulations stipulate that if a patient’s concern is not resolved within 24 hours it should be recorded as a complaint. Compliance with these new requirements was bound to result in an increase in the number of recorded complaints. 3. In any event, a rise in the number of recorded complaints can be seen in a positive light, at least in the short term. It can be an indication of better publicity and increased awareness of a patient’s rights as set out in the NHS Constitution, better signposting for complainants, or even a vote of confidence in the complaints system itself; people are unlikely to complain if they do not think their concerns will be taking seriously or if they believe that nothing will change as a result. 4. Complaints provide a rich source of insight and information that is freely and readily available from service users. An increase in complaints means more feedback which can help a Trust or other NHS body to improve or amend its policies.
The effectiveness of the new complaints system introduced on 1 April 2009 5. The new integrated system for handling complaints within the NHS and adult social care introduced in April 2009 offers a quicker, simpler route to resolution for patients and their families and for the NHS and many are already seeing the benefits of that. The Healthcare Commission was abolished, and the Ombudsman became the second and final point of contact for people with complaints about the NHS. 6. The changes introduced in April 2009 reflect those I proposed in my 2005 report Making things better?, removing the unnecessary complexity and reducing the length of time that it took for a complaint to exhaust each level, which had made it all too easy for complainants to be worn down and, eventually, to give up without achieving any resolution. 7. The new system, and the direct relationship that it has created between the Ombudsman and the NHS, has enabled us to share our expertise in complaint handling and the broader lessons emerging from our casework at a local, regional and national level to improve customer service and administration for the benefit of patients and their families. 8. One of the key elements of the complaints system is effective local resolution. Using relevant and timely feedback from service users in order to improve the service that is provided is agreed best practice in all aspects of the public and the private sphere, and complaints are a crucial element of that feedback. The NHS is no different. In order to learn from complaints the NHS needs to receive direct feedback from service users and to have a direct dialogue with the recognised authority on complaint handling, the Ombudsman. The system introduced in April 2009 provides this.
The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman 9. As the Committee are aware I published Listening and Learning in October 2010, the first of what will be an annual series of reports examining NHS complaint handling. As the Committee has noted, the underlying message in the report was that the NHS needs to listen harder and learn more from complaints. 10. I highlighted in that report that when patients and their families are unhappy with how the NHS body concerned handled their original complaint it is most commonly because they either received a poor explanation, an incomplete response or experienced unnecessary delay. Failure to handle a complaint properly or promptly often makes an already difficult situation worse. More detail on my assessment of the performance of the NHS can be found in that report. 11. As I noted in Listening and Learning, the Ombudsman has always been a strong supporter of advocacy and we have developed a close working relationship with the Independent Complaints Advocacy Services (ICAS) as a key intermediary for the referral of complaints. Around 10% of the health complaints that I receive have an ICAS or other professional advocate. In my experience complaints that have ICAS involvement are much more likely to be brought to the Ombudsman at the right time and are more likely to be accepted for investigation. This suggests that ICAS are doing an effective job in identifying the cases that are most suitable for an Ombudsman investigation. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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12. I expressed concern in Listening and Learning about the quality of signposting to my Office and the information made available to patients and their families about complaints procedures. The high numbers of complaints that reach my Office before local resolution is complete suggests that there may be inadequate information about how to complain. 13. The direct relationship between the Ombudsman and the NHS gives the opportunity to address these issues. Through the regional conferences my staff have held for complaint managers and the tailored engagement with the Trusts that generate the most work for my Office, we have used our knowledge and expertise to support their efforts for improvement. 14. A Stakeholder Impact Study was undertaken in October 2009—January 2010 to gauge how my Office is perceived. One area where there was dissatisfaction with my Office was the time it took to complete an investigation and the distance in time since the original event, which sometimes made the recommendations feel less relevant. This has been improved significantly under the new system. The previous lengthy process meant that by the time a complainant came to my Office the incident in question had occurred over a year previously and often senior staff at the body had since moved on. Under the new system complaints come to my Office within months of the events complained about. 15. 2009–10 was a challenging year for my Office as we addressed the impact of higher workloads following the abolition of the Healthcare Commission, built the capacity and capability of my staff and dealt with the work inherited from the Commission. The target for 2009–10 to complete 55% of investigations within twelve months took account of those factors. That target was in fact exceeded (65% were completed within 12 months) and that has put my Office in a strong position to meet the 90% target in place for 2010–11 and to deliver the timely service that patients and their families deserve. 16. My Office also carries out regular customer satisfaction surveys to assess our own performance. In the most recent survey: — 73.5% of those who contacted my Office with an enquiry were satisfied with the customer service they received; — 77% of those who had their complaint investigated felt that the decision reached was the result of an independent, fair and unbiased investigation; and — 88.1% of those who had their complaint investigated would recommend my Office to family and friends. 17. More information about the performance of my Office can be found in my Annual Report.
The role of Patient Advice and Liaison Services as a “gateway” to the complaints system 18. We have no evidence to offer the Committee in this area.
The failure of some Foundation Trusts to report numbers of complaints 19. All NHS providers are required to produce an annual report on their complaint handling specifying the number of complaints received and the subject matter; the number which were considered well-founded; the number referred to my Office; and any action which has been taken to improve services as a result of those complaints. This report must be made available to anyone on request. 20. Additionally, guidance for the mandatory Quality Accounts encourages inclusion of relevant complaints information but it is not currently a requirement. However the “KO41” report on complaints that trusts provide to the Information Centre for Health and Social Care is not mandatory for Foundation Trusts. 21. The poor quality and inconsistent information about complaints and their outcomes which is therefore produced diminishes learning within the NHS and impedes access to choice for patients. Clear and consistent complaint information should be part of the Government’s Information Revolution. 22. I have been working with colleagues from the Department of Health, the Information Centre for health and social care, the NHS itself, the Care Quality Commission, Monitor, National Voices and the National Association of LINks, to explore how we can achieve meaningful, comparable complaints information which can inform the development of healthcare, strengthen the quality of services provided and support enduring improvement for patients and the public. We hope to be in a position to issue a joint statement in the New Year.
The Government’s plans for future complaints-handling arrangements 23. As the Committee will know, the White Paper Liberating the NHS, proposes to extend the role and remit of local HealthWatch (the new name for the existing Local Involvement Networks (LINks)) to provide complaints advocacy services, so that they can support individuals who want to complain. 24. Whilst I welcomed the commitment to making support and advocacy widely available, I did raise some concerns in my consultation response about the detail of the proposed arrangements. I am pleased to see that some of those concerns have been taken on board in the Government’s response to their consultation, published on 15 December 2010. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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25. I had expressed concern about the lack of detail on the functional relationship between local authorities and HealthWatch England and about the governance arrangements between local HealthWatch and HealthWatch England. I was therefore pleased to see that the Government will set out proposals for governance and stakeholder engagement at the time of the publication of the Health Bill, in particular prioritising how relationships and accountabilities will work, and I look forward to reading them. 26. I also highlighted the potential conflict of interest in the role of local HealthWatch as advocate for an individual complainant—and the part envisaged for HealthWatch in the local commissioning decision-making process. I expressed concern about the extent to which the existing LINks are ready to perform an advocacy and support function, given the wide disparity in the effectiveness of these networks throughout the country. I also noted the lack of any reference to the minimum standards or requirements of an advocacy service which might apply, resulting in the potential for a proliferation of widely differing contracts, with the inevitable risk in this of an uneven provision of service—one which depends on each individual local authority’s approach and funding priorities. 27. Although these risks still need to be managed, I was encouraged to see that the Government has now confirmed that local authorities will receive additional funding for commissioning NHS complaints advocacy. The decision that the responsibility for commissioning NHS complaints advocacy will not transfer to local authorities until April 2013 (with the ICAS contract now renewed until that date) and to establish a number of “Pathfinder” local authorities to test different models for HealthWatch and to develop best practice, should, as the response states, “provide local authorities with an opportunity to put in place robust and effective arrangements”. I was also pleased to see that the Government will now build in flexibility in how local authorities commission advocacy services, whether from local HealthWatch or from other organisations (with HealthWatch signposting these services). 28. I had also noted that the reference to advocacy provision was for NHS complaints only. In my experience, many complaints are now so inextricably interrelated between health and social care that an advocacy service would have to provide support across the range of services and I felt that should be made explicit. Whilst I was pleased to see the Government’s response acknowledged that “the HealthWatch brand should…be associated with both health and social care”, complaints advocacy is still described in relation to “NHS complaints” only, so I await to see how this develops in practice.
How data from complaints will feed into the planned new commissioning arrangements 29. In my view it is essential that data from complaints feeds into the new commissioning arrangements. On 13 December 2010 I published my policy and practice on sharing and publishing information about complaints, which includes sharing information with existing commissioning bodies. 30. I am currently in discussion with the NHS and the Department of Health exploring ways in which the work of the National Quality Board and Quality Accounts can ensure that data from complaints is fed into the planned new commissioning arrangements. I will be responding to the Government’s consultation on the Information Revolution and I look forward to hearing how this ambition will be achieved.
Litigation 31. I have no specific evidence to offer the Committee in relation to the detailed questions on litigation against the NHS. My evidence is focused on the overall landscape of complaints and claims and the need for a flexible interface between the Ombudsman, the legal system and the courts. 32. When considering litigation, and any new options arising from the Government’s intentions regarding the implementation of the NHS Redress Act 2006 and any statutory right to compensation for “treatment injury” from an independent fund, it should be remembered that there already exists an alternative dispute resolution route which is free to the user at the point of delivery and which can deliver apologies, explanations, financial compensation where appropriate, and actions to prevent recurrence when clinical errors have occurred. That route is making a complaint through the NHS complaints system and, if necessary, bringing a complaint to the Health Service Ombudsman. 33. It is important to consider the totality of what is available through the complaints and litigation routes to resolve disputes with the NHS. Any consideration which focuses on part of the system in isolation will not provide sufficient understanding of the implications in terms of being user-centred, fair, efficient and effective and could undermine the rights and pledges on complaints and redress set out in Section 2(a) of the NHS Constitution. 34. Transparency is key when considering the interactions and implications of the whole system of complaints and litigation. All parties—complainants and their advisers, as well as service providers—need to understand the full range of options available. They need to understand for each option how it works, what it costs and what outcomes it can, and cannot, achieve. 35. Such an approach should enable a dispute to be dealt with by that part of the overall complaints and claims system which is best placed to deal with it promptly, effectively and at least cost to the public purse. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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36. Sometimes the best outcomes are achieved when the complaints and claims system work together. For example, although I often make recommendations for financial compensation, there are times when my investigations identify injustice arising as a consequence of service failure but where pursuit of a legal claim is the best way of establishing the appropriate level of financial compensation. In such circumstances, I have encouraged the complainant to use my investigation report to support such a claim and have liaised with the NHS Litigation Authority and the medical defence organisations accordingly. This approach, joining up the complaints and claims systems has enabled swift and substantial settlements to be secured without the need for recourse to the courts. 37. There also needs to be awareness that changes in one part of the system can impact on another. For example, the Ministry of Justice’s current consultation on their Proposals for the Reform of Legal Aid in England and Wales includes a proposal for cutting public funding for claims of clinical negligence. Should these legal aid cuts happen this might result in a significant increase in demand for remedies through other parts of the system of complaints and litigation.
Conclusion 38. There has been considerable progress in recent years in reforming the NHS complaints system. There is good dialogue and there are well-established working relationships between the Ombudsman and the NHS, the Department of Health, the Care Quality Commission and Monitor, the professional regulators, the NHS Litigation Authority and the medical defence organisations. There is great potential for building on the April 2009 reforms to the NHS complaints system and on more recent commitments to provide better information about complaints, in order to deliver a complaints and claims system that provides good outcomes for patients and the NHS, and drives improvements in healthcare quality. December 2010
Written evidence from Action Against Medical Accidents (CAL 32) 1. Introduction 1.1 Action against Medical Accidents (AvMA) is the national patients’ charity which works for better patient safety and justice for people affected by medical accidents. AvMA provides advice and support to around 4,000 people a year through its casework and helpline services and works with the Department of Health, NHS bodies and the health professions to improve patient safety and the response to patients and families when things do go wrong. AvMA has particular expertise and experience in NHS complaints, medico-legal issues and clinical negligence litigation. We accredit solicitors for our own specialist clinical negligence panel, which is recognised by all stakeholders as a mark of specialism.
2. Complaints 2.1 It is impossible to give a scientific answer to that question of why complaints numbers have risen, but from our perspective this will probably be due to the combination of factors, including: — significant continuing problems with the quality of NHS services in some areas; and — a greater public awareness of complaints procedures and greater preparedness to complain to address causes of harm and potential harm, partly as a result of high profile scandals such as Mid Staffordshire. 2.2 In terms of the overall effectiveness of the new NHS Complaints Procedure introduced in 2009, whilst we fully support its intentions and we do see examples of very good practice, our experience is that investigations and responses to complaints are still too often defensive, economical with the truth or inadequate. There is also inconsistency in the way the complaints regulations are being interpreted and a lack of national guidance. There is still too little evidence that lessons from complaints are being put into action.
3. Access to Independent Review of Complaints 3.1 One aspect of the reforms over which we had expressed our concerns was the move to a two-stage process with the only route of appeal following “local resolution”, being the Ombudsman. We felt that unless the Ombudsman has the capacity and will review cases that come to her using the same sort of threshold that had been used by the Healthcare Commission, then many complainants deserving an independent review of their complaint would be frustrated and possibly be worn down by the process. We remain concerned about this. The Ombudsman only accepted 346 health complaints for investigation in 2009–10.48 This is only a marginal increase on 289 for 2008–09. A further 219 were closed by intervention with the NHS body concerned. These figures represent just 3% of all complaints received by the Ombudsman. 3.2 Bearing in mind that the Healthcare Commission had dealt with 7,827 independent reviews in 2007–08 (30% of which were upheld),49 these figures would suggest that many people are being “bounced” back to 48 “Listening and learning: Review of Complaints Handling by the NHS in England 2009–10”, PHSO, 2010. 49 “Spotlight on Complaints”, Healthcare Commission, February 2009. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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attempt further local resolution with the NHS body they are complaining about. Whilst we accept that in some circumstances this might be appropriate, we are worried that in others it is not. Complainants have expressed frustration to us about this, and some may well feel so frustrated and worn down by the process that they give up on their complaint. There appears to be something of a “black hole” into which the many complaints which would have been reviewed by the Healthcare Commission and be upheld, with serious recommendations for the NHS body, have fallen.
4. Litigation and Complaints 4.1 AvMA was delighted when, after years of us arguing the case for this, the rules preventing patients having their NHS complaint investigated if they started legal action over an issue connected with their complaint were withdrawn. There is now nothing in the NHS complaints regulations which prevents this from happening and the Department of Health have confirmed the department’s position should be that the commencement of litigation, or the intention to, should not preclude an investigation under the NHS complaints procedure. However, we have found that a number of NHS bodies are still wrongly advising complainants that they can not have their complaint investigated if they are taking legal action. We provide examples in the Appendix. Although the Department of Health has, at our request, already written to recommend trusts of the new position, clearly more needs to be done to ram home the message. 4.2 The problem is exacerbated by confusion over what the Ombudsman can investigate. The Ombudsman is governed by different regulations than the NHS complaints procedure, and the Ombudsman is not allowed to investigate a complaint if the complainant has or had “a remedy by way of proceedings in any court of law” (HSC Act 1993 section 4). Unfortunately, some of the Ombudsman’s staff have been interpreting this as meaning that the Ombudsman can not investigate cases where the complainant has commenced clinical negligence proceedings or intends to. We give examples in the Appendix. 4.3 Not only is this approach by the Ombudsman out of keeping with the approach of the new complaints procedure, but we believe is an incorrect interpretation of the Ombudsman’s own legislation. The remedy which a complainant is seeking from the Ombudsman is not financial compensation, and we are sure that the Ombudsman, whilst she does have a power (rarely exercised) to recommend compensation, would not want to become a major route for those seeking compensation. At the same time, a clinical negligence action can only provide financial compensation and not the other forms of remedy such as explanations, apologies, improvements to services and putting right an injustice, which are remedies available from the Ombudsman. 4.4 We have taken up this issue with the Ombudsman and we hope that clearer guidance is given to all of her staff to the effect that taking legal action over clinical negligence or the intention to, should not affect in any way the Ombudsman’s assessment of a complaint for possible investigation. The only exception should be if the remedy being sought from the Ombudsman is financial compensation and the complainant has access to that remedy through a court of law. 4.5 It is very important that complaints are dealt with thoroughly whether or not litigation is intended or in train. Otherwise, vital indicators of poor or dangerous practice could be missed. Also, it is wrong in principle to treat some NHS patients differently because they need to litigate to obtain compensation as a result of negligent treatment. 4.6 We recommend that guidance on the NHS complaints procedure is issued for all NHS bodies. This used to be the case with the old procedure and this was found helpful by complaints staff, patients and their advisers. Such guidance need not be over-prescriptive, but having a point of reference such as this can help ensure consistent good practice. It also provides the complainant with the ability to understand and, if necessary, point out if their complaint is not being dealt with appropriately.
5 ICAS 5.1 AvMA provides advice to a considerable number of people who have sought help from ICAS, where this had not led to successful resolution of their complaint or they have been told by ICAS that they can not help them because they are seeking help with issues beyond the remit of ICAS or the NHS complaints procedure. These might include possible legal action, referrals to health professional regulators such as the GMC and NMC, help with inquests, or private sector complaints. These are all areas where AvMA specialises and is in a good position to help. Unfortunately, not all ICAS providers or advocates appear to consistently tell people in these circumstances of our ability to help. 5.2 When ICAS was first set up there was a recognition that the kind of more specialist advice that AvMA provides was necessary, as well as the more generic help with “navigating” the NHS complaints procedure, at the local level, which ICAS provides. Initially the DoH and then ICAS providers via sub contracts commissioned AvMA to fill this gap. Sadly, due to their own pressures, ICAS providers no longer do this, leaving a gap in any specialist funded service, which AvMA is struggling to meet using its own charitable resources. There is already a recommendation to fund specialist advice for members of the public who may want to raise a concern about health professionals’ fitness to practice, from the “Tackling Concerns Locally” report on implementing reforms to health professional regulators. No progress has been made in implementing this recommendation. The successor service to ICAS should include access to providers of these kinds of specialist advice. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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5.3 In terms of the operation of ICAS itself we feel there is a need for a proper independent evaluation. The “ICAS Impact Report” published by the three ICAS providers in September 2009 provides a useful insight into some of the good work that ICAS does, but is more of a promotional brochure. We found it surprising that AvMA, which has a unique insight from a national perspective of how ICAS is working, was not consulted on this. We do see some fine examples of advocacy work by individual ICAS workers and an impressive professional approach by some providers. However, there is still a degree of inconsistency in the way the service is delivered, and we are concerned about some aspects of the service. These are not necessarily a criticism of the providers themselves, but the way in which the system has been set up/commissioned by the Department of Health. The main concerns about the way ICAS currently operates are: — inconsistency of quality of service provided by different offices of ICAS; — failure to have a consistent policy of telling complainants or referring complainants to AvMA or other sources of specialist advice where appropriate; — the inability of the service to deal with complex complaints which may need to use different processes outside the remit of ICAS, and the lack of a funded source of advice for these cases; — the reluctance of some ICAS staff to provide “advice” as opposed to pure “advocacy” (for example, refusing to offer an opinion on the adequacy or appropriateness of NHS complaint responses); and — a reluctance to use information obtained as a result of complaints to seek improvement from the NHS, or to make this information available to LINKs.
6. Healthwatch 6.1 Healthwatch provides an opportunity to address some of the current weaknesses in the system of patient and public involvement and complaints support. When CHCs were abolished, it was intended that ICAS would be provided or commissioned by Patients Forums as part of an identifiable “one stop shop”. We would highly recommend returning to this model for Healthwatch. It would make the system less confusing for the public and would mean that Healthwatch would benefit from better intelligence from complaints to inform its monitoring work. The Government has recently announced that it wishes local authorities to commission ICAS type services for each Healthwatch area. We would urge them to think again, as this could only lead to even more inconsistency of service provision and would miss the opportunity of returning to a more effective, joined up system similar to CHCs. It also creates a conflict of interest, as some complaints will be about the local authorities’ own social care services. 6.2 Whoever ends up providing the complaints advice and support in the future, there should be a requirement to make complaints information readily available to Healthwatch. This requirement should include NHS bodies including Foundation trusts needing to inform Healthwatch about complaints and actions taken to make improvements as a result.
7. PALS 7.1 We strongly advise PALS should not be seen as a “gateway to complaints”. We see the benefit of PALS as acting as an internal customer care or “trouble-shooting” service. It has become very clear through the Mid Staffordshire inquiry that PALS can be used inappropriately as a barrier to people having their complaint properly investigated. There should be no implication that people have to go through PALS before they can complain formally. PALS should provide information on how to complain and also on sources of independent advice such as ICAS and AvMA.
8. Primary Care 8.1 We are particularly concerned about the oversight of complaints in primary care, where PCTs had been given a role. There is great inconsistency at individual GP practice level. Who will fill this gap and what role will there be for the GP Commissioning consortia?
9. NHS Foundation Trusts 9.1 We believe that the current anomaly whereby NHS Foundation Trusts do not have to report on numbers of complaints should be addressed. All trusts, Foundation or not, should have to report not only on numbers of complaints but on subject matter; outcomes; and measures taken as a result of complaints.
10. Litigation: Costs 10.1 AvMA’s currently completing a detailed response to the Ministry of Justice consultation on taking away legal aid from clinical negligence cases and reforming how conditional fee agreements and other legal costs are funded. However, we think it important to point out at this stage our key comments on this issue. 10.2 We agree that the cost of clinical negligence litigation has increased significantly as a result of more cases being settled on CFA’s than through Legal Aid. The NHS Litigation Authority and others agree that settling a case on a CFA is, generally speaking, several times more expensive than settling a case brought on Legal Aid. We believe that there has been a lack of joined up thinking across government departments. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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The Ministry of Justice is seeking to save £17 million by taking clinical negligence out of scope for legal aid. We would estimate that at least that amount might be saved for the NHS if access to legal aid was increased for all clinical negligence cases, rather than most claimants being forced to use a CFA. Instead, the combined effect of taking away legal aid and implementing Lord Jackson’s proposals on CFA’s will mean that many people will not be able to take legal action at all. The reduction of people’s ability to access justice may also deprive the NHS of opportunities to learn lessons and an important incentive to improve safety.
11. Alternatives to Litigation 11.1 AvMA has recently served on the Scottish Government working party looking at a possible “no-fault” compensation scheme and has also considered this and other alternatives to litigation extensively over the years. We firmly believe that there should be alternatives to litigation. We would summarise the options as follows: 1. A full blown no-fault compensation scheme as run in other parts of the world such as Sweden. 2. The NHS Redress Scheme provided for by the NHS Redress Act 2006 which has never been brought into force. Whilst AvMA would have designed this scheme differently than it appeared in the Act, appropriate regulations could still make it a scheme that would benefit many of the would-be claimants. The scheme would also encourage and support an open and learning “patient safety culture”. 3. Other forms of schemes to deal with relatively small compensation payments. AvMA was part of the “Resolve” pilot scheme for settling small claims and has been involved with the Welsh “Speedy Resolution” Scheme. It would be perfectly possible to introduce similar initiatives. We understand that the NHS Litigation Authority itself is looking at one idea of settling small claims on a fast- track basis using a jointly instructed medical expert. 4. AvMA has found that where NHS trusts able to make an ex-gratia payment following a complaint in recognition of the pain and distress caused, this has been extremely useful. It is a pragmatic way of a trust making an appropriate gesture and avoiding further unnecessary costs. This may be an appropriate way of dealing with cases up to a limit of, say, £10,000.
12. Open Reporting and Learning Culture 12.1 The current regulatory system tolerates cover-ups and denial and does little to encourage openness and learning. Since the Committee’s report on Patient Safety, in which it recommended reconsideration of a statutory Duty of Candour (with patients/families when things go wrong), there have been some significant developments. In April 2010 it became a statutory requirement for all NHS trusts to report patient safety incidents which cause harm to patients to the national reporting and learning system. In many respects this is to be welcomed. However, very controversially, a decision was taken not to make it a statutory duty to tell the patient or family anything at all about the incident. This sends a very worrying message about how seriously the Government takes “Being Open with patients”. 12.2 The Government have made a commitment in the NHS White Paper to “require hospitals to be open about mistakes and always tell patients if something has gone wrong”. However, Ministerial statements, notably in the adjournment debate on this subject on 1 December 2010, have made it clear that the so-called “requirement” may not in fact be a statutory duty but some form of further “guidance”. To be taken seriously, a requirement to be open needs to be a clear and enforceable statutory duty. This is the single most important way of improving approaches to complaints and litigation and promoting patient safety. 12.3 As regards litigation’s specific effect on an open reporting and learning culture, we believe that this is an important factor. The fear of litigation (quite wrongly) is sometimes allowed to justify being less than honest. The development of less adversarial ways of compensating patients would help in this regard. However, it should be made crystal clear that fear of litigation can never justify being less than fully open and honest with patients when things go wrong. December 2010
Written evidence from Leigh Day & Co Solicitors (CAL 35) This submission is prepared on behalf of the clinical negligence department at Leigh Day & Co Solicitors. Leigh Day & Co is a niche firm, which specialises in personal injury, including clinical negligence, and human rights law. We have a strong healthcare practice. The firm’s ethos is to ensure that the ordinary person has just as good quality legal advice as our state bodies, insurers and multi-nationals. As such we only act for Claimants/Applicants. Our clinical negligence department has unrivalled experience in bringing claims on behalf of those who have suffered injuries as a result of medical accidents. Many of our clients bring claims against the NHS. These clients are often going through the complaints procedure or have exhausted the complaints procedure when they approach us. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Our response to this consultation can be summarised as follows: — The number of complaints, those litigating and so litigation costs have risen primarily as a result of the reduction in the quality of NHS care provided to patients. If what is desired is a decrease in complaints and costs the emphasis should be on improving NHS care. — In addition, the cost of litigation has increased as more injured patients and/or their relatives have been able to achieve access to justice. The availability of affordable funding, by way of CFAs, has allowed those injured people who were not entitled to legal aid/public funding to claim when previously they were not able to. — The current complaints process is ineffective and, in fact, in the vast majority of cases leads to dissatisfaction. — What most patients/relatives want is an independent, transparent, inclusive form of independent inquiry. — Patients and relatives who wish to complain receive little practical support and now, in most cases, have no further avenues of redress should they be dissatisfied after local resolution stage. — We are disappointed that information sharing is only now being proposed and that, as is being suggested, clients’ complaints and claims have not already led to open reporting and learning in the NHS. — The NHS Redress Act does not appear to take into account the reality facing those patients/ relatives who bring “low value” cases. — We consider a statutory right to compensation for “treatment injury” will be too expensive to be effective. — Mediation can only work in place of, or before, litigation is the patient/relative has “equality of arms” with the healthcare provider. We believe it is worth highlighting at the outset that a significant proportion of the clients who approach us do not do so to obtain compensation but to obtain: — an apology; — an explanation about what went wrong; — answers to their outstanding questions; — assurance that those responsible will be held accountable; and — reassurance that changes will be made and lessons learnt; However, due to dissatisfaction with the complaints process, our experience is that even when their main aim is not financial compensation our clients choose to litigate as it is the only way available to them to hope to achieve the aims above.
Complaints 1. The reasons for the recent sharp rise in NHS complaints In our view the primary reason for the rise in complaints is a fall in the quality of care that patients are receiving in this country. The reasons for the reduction in quality of care are multifactorial; the lack of financial resources, expenditure of limited financial resources on management and administration rather than medical care, the use of locum and less experienced staff, in some cases not trained to UK standards, understaffing, changes in doctors training and working practices (for example, as a result of the EC working time directive), lack of training, the imposition of targets, such as reduced waiting lists or those necessary to achieve foundation status, a change in attitude of staff from “caring” to “disinterested” or even “abusive”, a lack of equipment, poor communication between staff and between the staff and patient. Complaints may also arise because: — concerns about care are no longer dealt with on the ward—Our experience is that a patient who has questions or concerns about their care is unable to find staff on the ward able or willing to talk to them and so they resort to making a complaint, or in some cases, are advised to complain; — public awareness—the public is more aware about being able to complain and about litigation. There is, of course, more media attention; — The Legal Services Commissions requirement that the complaints procedure be exhausted before funding is granted in all clinical negligence cases; and — the emergence of “whistleblowers”—a number of clients have approached us because a healthcare professional, involved in their treatment or who saw them subsequently, recommended that they should complain about their treatment and/or consult a solicitor. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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2. The effectiveness of the complaints system introduced on 1 April 2009 The Care Quality Commission (CQC), which replaced the Healthcare Commission, is no longer part of the complaints process. The CQC is only interested in “sharing experiences” which is not useful to clients who want an apology, an explanation of what when wrong and assurances that steps will be taken and lessons learnt. Whereas before 1 April 2009 patients could refer their complaint to the Healthcare Commission if they remained dissatisfied after local resolution stage the second stage of the complaints process is now the Ombudsman, who will only investigate the complaint further if (a) there has been administrative fault or service failure, (b) injustice and hardship has flowed and (c) there is a reasonable prospect of the ombudsman investigation leading to a worthwhile outcome. This means that for many clients there is no redress should they continue to be unhappy. The general feeling expressed by our clients is that the complaints process is frustrating and not helpful in resolving issues and answering queries. In many cases the treatment received during the complaints process prompted clients to litigate. We have carried out a review of some of our cases in which our clients made complaints. Our clients’ comments on the complaints process were that it: — did not answer the questions raised by the complainant. The most important issues were ignored; — caused further upset; — was not useful in understanding what had happened; — included denials of admissions of poor care previously made orally; — included unflattering and/or derisory reference to the patient; — suggested that the patient was being “dishonest” in matters raised in the complaint; — was slow, specifically clients complained of inordinate delays. For example, one client was still waiting over five years for the ombudsman to report following the death of his son; — led to repeated broken promises by healthcare providers; — lacked honesty; — did not involve those clinicians or staff responsible for the complained of care; — lacked transparency. Particularly, clients complained that information obtained during the process was not disclosed to them. For example, in one case the Ombudsman obtained independent expert evidence but refused to make it available to the complainant; and — was pointless.
3. ICAS and referral to Ombudsman Our experience is that clients generally have not consulted ICAS before approaching us. It is possible that they are not aware of their existence. They have usually already made their complaint and are awaiting a response or they are considering making one, want some help with the complaint and depending on outcome they wish to litigate. In one case, a client did consult ICAS who assisted them in writing their letter but did not agree to attend meetings with the hospital staff. Apart from London Region (five offices) and West Midlands (three offices), we understand that ICAS only have one office per region. Given the number of complaints this would seem inadequate. Only a small number of our clients refer their complaint to the Ombudsman. As is borne out by the points made above, this is largely due to the unsatisfactory experience with the healthcare provider leading to the client having lost faith in the process. Also, as described above, a referral is not possible if certain circumstances do not apply. Our most recent experience of the Ombudsman’s actions was in the case referred to above concerning the complaint that had been ongoing for five years. In that case the Ombudsman prepared draft reports which were disclosed unilaterally to the healthcare provider only. Over the course of the last year when the client asked about the progress of the complaint he was informed that the Ombudsman was waiting for the healthcare provider’s comments. However, this month after five years of waiting and in the knowledge that the Ombudsman had investigated and prepared draft reports he was informed that the Ombudsman has decided not to prepare a final report.
4. PALS PALS is not independent, it is a department of the healthcare provider, in which our clients have already lost trust. Our experience is that PALS are only effective only in providing information to the patient about how to commence the complaints process. They do sometimes help prepare letters but PALS do not act as an advocate for the complainant and, in our experience, seem able to offer little assistance if the complainant remains dissatisfied with the first response. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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5. Foundation Trusts failure to report We do not have any specific experience of this. We do not know if or when the Foundation Trusts reports.
6. Health Watch In principle Health Watch sounds like a good idea but in practice we are unsure how it will work. It is dependent on resources. ICAS is an advisory body providing advocacy and support and in our experience not particularly effective, partly because it is under resourced. We are unclear how Health Watch organisations will differ and how they will be funded.
7. Information sharing The complaints procedure has existed for many years. We believe information sharing arrangements should have already been in place. If all are to benefit (healthcare improve and patients obtain redress) then all information obtained during investigations into complaints should be made available to the relevant parties. Furthermore there is a correlation between new reporting requirements to the NPSA and complaints. Our clients have experience of healthcare providers carrying out their own investigations into the care given but not telling the patient involved. We believe that in the event that a healthcare provider carries out their own investigation under the incident reporting framework (even though the patient has not made a complaint) the patient should always be consulted and disclosed all documents arising from the investigation.
The Cost of Litigation Against the NHS 8. Reasons for the inflation of litigation costs in recent years Litigation costs have risen because of a rise in the number of claims, which is primarily, in our view, because of the decrease in the quality of health care some patients receive (as set out at paragraph 1, above. The evidence we obtain when investigating claims suggests that the standard of healthcare being provided by the NHS in some cases is poor, sometimes appalling. Even if we can not bring a successful claim for clients more often than not the stories they tell of how they were treated are shocking. An idea of some patients’ experiences can be gained from the evidence given by families in the Stafford Inquiries. Sadly our experience shows us that the standards of care described are not isolated to Stafford. It should be remembered that to bring a claim in clinical negligence what a patient has to prove is not that the care received was not perfect but that it was not “reasonably competent”. Anyone going in to a hospital in the UK would hope that, at the very least, the care they were receiving was competent, but the rise in claims suggests that often it is not and it is this, rather than the increase in litigation costs, that should be of most concern to those who are interested in patient safety. In addition, to the reduction in quality of care we consider that other reasons for an increase in litigation costs include: — The NHS’ approach to claims—We experience delays and are forced to incur further costs as a result of the NHS’ response to claims brought against them. For example, we are forced to make repeated requests for records and/or applications to court in order to obtain information that should have been disclosed to us at the outset. Often correspondence goes unanswered and deadlines are not met. — In our experience the NHSLA rarely makes early admissions or offers to settle and ignores attempts by Claimants to achieve early settlement, so meaning that unnecessary costs are incurred in pursuing a claim — Rises in costs/expenses—The fees/expenses of those on whom bringing a clinical negligence relies, including experts and insurers, are significant and continue to rise. In addition, court fees have risen significantly over the last few years. — The cost of individual claims have also risen with the introduction of Conditional Fee Agreements (CFAs) which provide for the ability to recover a success fee so increasing the solicitors’ profit costs sought—but please see our comments at 9 below. Often the rise in costs is attributed to solicitors’ unreasonable costs. It should be remembered that the reasonableness of solicitors’ charges is governed by the Courts, which issue guidelines and have the power to reduce hourly rates and/or disallow any work considered unreasonable by way of detailed assessment in individual cases. We take this opportunity to comment on the increasing pressure on solicitors in this field to do work for nothing and to cover other expenses. Should this continue eventually solicitors are not going to be able, or willing, to bring claims for clients who have suffered injuries as a result of medical treatment. In an attempt to obtain access to justice the patient or relatives will have to choose between unscrupulous claims farmers (which is particularly unattractive for those let down by professionals and are looking for someone to put their trust in) or bringing the claim themselves as litigants in person. There should be no doubt that this will result in a reduction of access to justice and an increased burden on the Court system. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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9. The impact of conditional fee (“no win, no fee”) arrangements on litigation against the NHS We understand that statistics show that since the introduction of CFAs the numbers bringing claims against the NHS have increased. We do not believe this means that CFAs have “encouraged” those who would not otherwise have claimed to bring a claim. They have merely offered access to justice to those patients and/or their relatives who could not previously afford legal advice or assistance. We do not think it should be assumed that CFAs have made it too “easy” for patients to claim. It should be remembered that the “no fee” of “no win, no fee” only applies to solicitors’ fees not to disbursements, including experts’ fees. To investigate whether a claim has reasonable prospects of success generally incurs experts’ fees in the sum of at least £5,000 and in some cases significantly more. To take a case to trial can lead disbursements in excess of £50,000. Sums that most low, and indeed middle, earners can not afford. It should be borne in mind that the NHSLA (and insurers) backed the introduction of CFAs and after the event insurance because in those cases they successfully defended they would be able to recover their costs from the Claimant, when they could not if the case was funded by legal aid. If the NHSLA is finding that with the introduction of CFAs they are paying more in costs then the only logical conclusion is that they are not properly assessing the risks of the claims being brought against them and are attempting unreasonably to defend those claims which they will lose. If they were winning the cases they defended they would be recovering the costs they had incurred and they should be finding themselves in a better financial position. The fact that costs are rising bears out our experience that the NHS continues to defend claims that are indefensible.
10. The effect of litigation on the development of an open reporting and learning culture in the NHS As solicitors for Claimants we are not privy to the internal workings of the NHS in terms of reporting and learning. However, we would say that the culture of silence and “cover up” are long standing within the medical profession and pre-existed the advent of clinical negligence claims. If anything we would hope that the ability of patients and relatives to bring claims has improved, certainly, the learning culture as Trusts have been forced to investigate the care provided which has given rise to a claim, members of staff have been confronted by errors they have made and the effects they have had upon the patient. If Trusts and staff have not been learning from claims we believe that they should have been—as already stated at 7 above. As already indicated above, however, the reality is that the NHS has often chosen to react defensively to a complaint or claim, demonstrated by the NHSLA’s instructions to all Trusts not to apologise for any errors, which was only withdrawn recently, and to us this demonstrates that the priorities are wrong. The NHS is a healthcare provider and as such its priority should be the welfare of its patients, not self-interest.
11. The Government’s intentions regarding the implementation of the NHS Redress Act 2006 Obviously, we cannot comment on what the Government’s intentions are regarding the implementation of the NHS Redress Act. However, it should be noted that not all “low value” (in terms of compensation) claims are those that involve less serious mistakes or less severe injury. Nor are they necessarily the most straightforward to investigate and so can be investigated and brought for less cost. Often the lowest value claims are those involving the death of a patient, often a child. The scheme fails to take into account that most patients who suffer medical injuries have lost trust in the healthcare provider who injured them. The indication by the government is that a patient should be “at the heart” of any investigation carried out but the reality is that the investigations will not be independent and will not be inclusive. The idea that the only legal advice necessary is advice on whether the amount of compensation on offer is reasonable is flawed—it fails to take into account all the factors a solicitor takes into account when considering an offer which includes weighing up the risks on liability, which the solicitor advising purely on quantum for a fixed fee will not be in a position to do. Without their own legal and medical advice the patient will remain on the outer edges of the process being carried out by a body they have no faith in. The scheme will fail to deliver what most clients who have low value claims want—please see comments on clients’ aims and objectives above.
12. The possible benefits of a statutory right to compensation for “treatment injury” from an independent fund, without the need to prove negligence, as required under tort law To compensate everyone who suffered a medical accident sounds ideal. However, we can not see how it could work. Nowhere in the world does a true “no fault” scheme operate. The nearest to it is in New Zealand, where it is still necessary to prove the cause of the injury, in the vast majority of clinical negligence cases, the most difficult and expensive issue to prove. A true “no fault” system would require huge resources, which the UK does not have. The medical injuries that the NHS pays out compensation for now must be the tip of the iceberg. There are a significant number of cases that we investigate and do not proceed with. Should all of those patients or relatives who instruct us be cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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compensated then the numbers of “claims” would double and that does not take into account those patients that approach us but decide not to proceed, those who never even consult a solicitor even though they think they have suffered a medical injury and those who may not even know that the injury they have was caused medically. To compensate all of these people properly would cost a huge amount of money, well in excess of the amounts that the NHSLA is paying out now on the comparatively few cases that are brought. Taking this into account it is most likely that given the lack of resources should such a scheme be introduced it would result in significant under-compensation of everyone who has suffered a medical injury. Of course, in those circumstances their needs will have to be met by other statutory services, the cost being borne by the government still but out of a different department.
13. Encouraging the use of mediation before litigation is initiated Mediation is a useful tool that works well along side litigation. In our view it could work before litigation is initiated for patients and relatives providing that what is meant by “before litigation” is before the issue of Court Proceedings, not before the patient/relative has had the benefit of legal advice and a proper investigation in to the facts of their case by both legal and expert medical advisers. Failing that it would not work for the exact reasons that the complaints process has not been working; the lack of transparency and honesty and inequality of the balance of power between the patient/relative who does not have access to the full facts and/or medical knowledge and the NHS which does. For mediation to work, though, will require a change in attitude from the NHS/NHSLA. Already as soon as we advise a Trust of a claim we invite an explanation and admission and often we make early offers to settle (in those cases that quantification is possible at an early stage), but these requests and offers most often go unanswered or ignored until litigation has commenced and trial is looming and if that approach is to continue mediation before litigation will only result in delay and further costs. December 2010
Written evidence from the Patients Association (CAL 41) Summary 1. The Patients Association would like to highlight three significant flaws in the current complaints process. 2. Firstly, the reliance on investigations being carried out by the organisation subject to the complaint generates a sense of mistrust on behalf of the complainants and can lead to potential conflicts of interest for complaints investigators. This is especially the case when the complaint relates to the serious harm or death of a patient. 3. There is a lack of external scrutiny of any action taken to improve services as a result of complaints. 4. There is a lack of measurement of complaints handling performance.
NHS Complaints 5. We welcome the opportunity to submit evidence to the important issue of NHS complaints handling. Whilst previously concerned about this issue, the Mid Staffordshire NHS Foundation Trust case heightened our concern that the current system is seriously inadequate. 6. Last year approximately 100,000 people complained about the treatment they or someone they care for had received. It is not clear why the numbers have increased. It may reflect increased awareness of the complaints process, increased publicity of incidents of poor care leading others to be more likely to form a view about the standards of their own care or an actual deterioration in quality of care. However even these figures are not likely to represent everyone that wanted to make a complaint. 7. One of the other key failures of the NHS regulatory and supervisory regime highlighted by the Mid Staffordshire case is that of the complaints system and the importance placed on patient experience data. 8. We would draw the attention of the Committee to the finding of the original HC investigation into Mid Staffordshire (Page 37), that: “The acute hospital portfolio review in 2004/05 showed the trust had a high overall number and rate of complaints. The trust was worst out of five local trusts for the number of complaints about nursing care per 10,000 occupied bed days, and the second worst out of 24 small trusts outside London.” And further that; “The trust fared poorly in the national inpatient survey, particularly for 2007 where it was in the worst 20% of trusts for 63% of questions. The trust was also rated in the worst 20% for overall standard of care.” cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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9. Our 2008 report “NHS Complaints: Who cares? Who can make it better?” (October 2008) was a survey of members and their experience of the NHS Complaints system which revealed that the NHS complaints system is cumbersome, variable and takes too long. The survey shows patients want genuine and positive recognition by staff that something has gone wrong, whether it is a simple apology or a formal hearing. The system itself seems unable to respond to individual patients needs. We also consider that Trust board accountability for the standard of their complaints system to be essential, and that there should be NHS management accountability to ensure all staff treats complaints seriously and positively, and a national audit of complaints to ensure consistency and best practice which will in turn reassure patients and be an educational tool for staff. 10. The 2009 report by Alzheimer’s Society “Counting the Cost” surveyed over 1,000 carers of hospital inpatients who suffered from dementia found only 7% of those that complained were fully satisfied with the outcome. 11. More recently the Parliamentary Health Service Ombudsman Listening and Learning: the Ombudsman’s review of complaint handling by the NHS in England 2009–10 found poor explanation or an incomplete response were the most common reasons recorded for dissatisfaction with NHS complaint handling. 12. Dissatisfaction with the complaints process is a very strong feature of a number of the accounts of NHS care published in our twinned reports Patients not numbers, People not statistics (2009) and Listen to patients, Speak up for change (2010).
Local Resolution 13. Currently complaints are handled internally at the first stage of the process. The White Paper proposals for NHS reform currently suggest this position will remain unchanged in the future. 14. Reliance on internal investigation can create a perception that the response will lack robustness and independence. Complainants can gain support from the Independent Complaints Advocacy Service but these advocates are not a part of the complaint investigation, rather a supporter of the process. The process also usually results in an investigation and response carried out without liaison throughout to ensure the investigation is proceeding in a way likely to meet expectations. 15. The Patients Association also considers that the current system of the emphasis of investigation and resolution of complaints by Trust themselves generates the possibility of conflicts of interest for the investigating team, particularly in cases of serious harm or death. 16. We would urge the Committee to consider carefully the appropriateness of asking any member of staff at a Trust, no matter how far removed from the staff involved in the complaint, to lead on an investigation of serious complaints made against their colleagues. 17. We see frequently an expression of “well they would say that wouldn’t they”, quite sensibly highlighting that investigators may have a vested interested in not finding in the complainants favour should that result in negative publicity or other negative consequences for the Trust of which they are an employee. 18. The Patient Association consider that there should be much sooner independent involvement in complaints investigations when they relate to accusations of serious harm or death. 19. The option of independent review exists with the Parliamentary Health Service Ombudsman (“PHSO”) but most complainants do not pursue this avenue, discouraged by the significant timescales and effort often already dispensed in making the original complaint. The elapsed time also makes it difficult for the PHSO to conduct an effective investigation and provide a prompt response. The PHSO can be perceived as an “establishment” organisation, without links with local communities reducing its ability gain the confidence of complainants. Furthermore the PHSO only accepts a very small proportion of complaints for review (approximately 300 year) providing a very limited number of people with an independent review of their complaint. 20. As the PSHO base its initial decision over whether or not to provide an independent review of a complaint largely on the original investigation response from a trust we would also question whether it is able to ensure the many complaints it does not take up are in fact being dealt with satisfactorily by the trust. 21. In relation to this, we would ask the Committee to seek reassurance that investigations by the PHSO are sufficiently rigorous as to ensure they will have a chance to detect situations where misinformation or lack of information is provided by the trust for example when medical records are incomplete. 22. We note the findings of the National Confidential Inquiry into Patient Outcomes and Deaths report “Deaths in Acute Hospitals: Caring to the End?” (2009) that found “incomplete documentation was commonplace.” 23. We have been reassured by the PHSO that they will when necessary visit trusts and interview staff but feel the Committee could explore the frequency and nature of such activity. An illustrative example of our concerns was highlighted in the case of Oenene Hewlett published in our report “Patients not Numbers, People not Statistics Report”. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Complaints Handling Performance 24. There is currently no systematic effective measurement of performance of complaint handlings and the quality of investigations being undertaken at Trust level. Time taken to respond is the only national measure and we feel this provides a very limited insight into the quality of complaints handling at a Trust. 25. As an urgent step we recommend that a national survey is introduced to be carried out with all complaints to provide at least some insight into the quality of complaints handling at a Trust level. This data should be collected at least annually and published on the NHS Choices and Care Quality Commission websites.
Service Improvement 26. As well as the initial investigation and response to a complainant, perhaps even more importantly, ensuring positive change as a result of complaints is another key component of an effective complaints system. 27. To our knowledge, for at least the last few years, when making recommendations for a trust to improve its care following the review of a complaint, there was no standard protocol for any kind of follow up assessment by the PHSO of whether or not such improvements were made. We feel this represents a huge loss of opportunity to incentivise NHS trusts to improve. 28. We have met with the PHSO to discuss our concerns and in particular raised the issue of follow up on recommendations. They consider this to be the remit of the CQC with whom we then held discussions about this. There was an acceptance that this was an important issue and we understand this will be considered further. 29. We would urge the Committee to seek clarification as to how this will be addressed as a matter of urgency. This is a serious concern of the Patients Association, particularly in the context of a poorly functioning complaints system. We believe that there should be high threshold for ensuring recommendations are followed up and that data in relation to this needs to be made available.
Additional Points 30. The Patients Association has been successful in securing a grant from the Health Foundation to introduce a new complaints system at Stafford that will attempt to address a number of the above failings and we would be happy to share further details of our proposals with the Committee. 31. The Shipman Inquiry recognised that a significant weakness of the NHS Complaints process was the absence of standards for investigations. Dame Janet Smith wrote “the lack of any objective standards or even guidelines must make the task of the practice complaints manager or supervising partner in a GP practice extremely difficult” and “… there must be, at the very least, a standard against which a complaint can be judged. Patients should know what their reasonable expectations are and should be entitled to have their complaints upheld when those reasonable expectations have not been met.” Six years after the Shipman Inquiry delivered its findings the absence of standards for investigations remains. 32. We are extremely disappointed that a number of Foundation Trusts failed to provide statistics to the NHS Information Centre on their complaints. It is completely counter to the aims of providing comparable information to services users and local communities. December 2010
Supplementary written evidence from the Patients Association (CAL 41A) I would like to raise four points in relation to the oral evidence given by me on the 1 February 2011.
Parliamentary & Health Service Ombudsman 1. During her oral evidence session Anne Abraham remarked: “As to our customer satisfaction research, I was very disappointed to hear one of your witnesses saying there is no customer satisfaction research. Yes, there is and it is on the website if you want to have a look at that.” (Taken from uncorrected transcript of oral evidence HC 786-ii) 2. I would like to highlight the wording I used as recorded in the transcript: “The quality of the ombudsman’s investigations is very difficult to gauge systematically because, as with the NHS, I have never ever seen actual surveys, for example, that they have conducted of people that have used their service to find out whether or not they were pleased with it, particularly those people that don’t get an investigation or an intervention.” (Taken from uncorrected transcript of oral evidence HC 786-i) 3. I did not state there was “no customer satisfaction research”, rather that I had not encountered any. 4. I have extensive experience of using websites as part of my research into a number of issues and had reviewed the PHSO website repeatedly as part of my research. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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5. Revisiting the website after reading the remarks of Ms. Abraham I am pleased to say it was prominently displayed on the front page. I cannot comment on whether or not it has always been in an easily accessible part of the website and accept I may have missed it. 6. I have sent apologies to the PHSO if that was the case but would highlight that such surveys should always be easily accessible to members of the public, whom may not have experience of searching websites for such material.
The Nursing & Midwifery Council 7. During my oral evidence I stated that: “I have talked about people working in very understaffed environments where bodies like the NMC and the RCN, if we are talking about nurses-but it could equally be said about any healthcare professional-would try and protect individual staff from being held to account for the outcomes of things that weren’t really in their control. I can sympathise with that.” (Taken from uncorrected transcript of oral evidence HC 786-i) 8. I would like to clarify that the statement relates to our experience of Nursing and Midwifery Council staff in February 2010 describing that they receive referrals where the complainant is describing poor nursing care being given by a number of staff where the description of the care demonstrates a number of staff generally providing a poor standard of care on a ward because of understaffing. It was explained to staff at the Patients Association that the NMC would consider that this is not an issue of regulating the individual nurses concerned as this was a service failure. 9. I maintain that using the word “protect” in this context is a reasonable description, whilst accepting the NMC may disagree with this interpretation.
The Role Of Commissioners 10. In relation to the following discussion of the role of commissioners: “Q15 Chair: But it is for the commissioner to require the information that Julie quite rightly says ought to be delivered to be delivered to them. They don’t have to go and inspect it. They simply have to be held to account. Kieran Mullan: I don’t necessarily agree that there is good information in the system that provides you with a robust idea of whether there is an issue at a trust. A lot of the poor care that goes on is not picked up on. You can’t compare one organisation to another effectively. From a commissioner’s point of view, it must be incredibly challenging to know whether you have a real issue with your provider, which is why we think there is a need for actual inspection. While we progress the information agenda, which will help enormously in all these issues, until we have moved down that road further, we do require that observation of care, that discussion with patients, and review of complaints in a very proactive way. Julie Bailey: I disagree. I think all the evidence is there. That is what we, as a group, do in Mid Staffordshire. We look at all the evidence that is coming out of the trust now so that we know everything that is going on and we know if that hospital is safe. If each trust was made to publish all of its data, it would give the public an insight as to what is going on in that hospital. All the evidence is there. It is just correlating it. Q16 Chair: The central finding of the Mid Staffordshire inquiry was not that nobody knew; it was that all the information was there. Julie Bailey: It was all there, yes, if somebody had just taken all of that evidence together.” (Taken from uncorrected transcript of oral evidence HC 786-i) 11. I would like to clarify my remarks. I agree entirely that commissioners should have access to and demand detailed and robust information about the performance of organisations from which they are commissioning services. 12. I have not seen evidence to suggest that the required detailed and robust performance information currently exists. 13. The Patients Association is encouraged by plans in the current White Paper to deliver an “information revolution” to address this failing and would encourage any action by commissioners to demand such information in the short term. 14. I believe that the evidence currently being heard at the Mid Staffordshire Public Inquiry from witnesses from South Staffordshire PCT and West Midlands SHA describes a scenario in which there was some concerning information about the performance of Mid Staffordshire NHS Trust and later Foundation Trust, but that that information was not robust, sensitive or specific enough, was open to interpretation and very often placed the Trust within a relatively large pool of other organisations with similar performance results. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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15. Whilst it was a failing of commissioners not to have buried further down into that evidence and to robustly pursue any areas of doubt, the Patients Association remains concerned that currently the information available to commissioners creates a risk that a similar failure may happen again. 16. As such, we advocate more direct supervision and monitoring of care until the described information gap has been addressed and there is more widespread evidence of commissioners consistently capturing reliable information about the performance of services.
Mid Staffordshire Complaints Project 17. In our written submission we described a project currently being funded by the Health Foundation to develop and deliver a programme of activity to encourage improvement of complaints handling at Mid Staffordshire NHS Foundation Trust. 18. During my attendance at the inquiry I felt it was inappropriate to discuss this project in detail as at that stage we had not finalised the activities of the project nor consulted all relevant stakeholders. My discussion of the project at the Mid Staffordshire Public Inquiry had generated concerns from stakeholders that they had not been consulted and as such I wanted to avoid a repetition of that scenario. 19. We have now undertaken consultation with stakeholders and further developed the plans for the project. I would be happy to share a further more detailed description of the project with the Committee should they consider it helpful. Kieran Mullan April 2011
Supplementary written evidence from the Health Service Ombudsman (CAL 31A) As Health Service Ombudsman for England, I welcomed the opportunity to give evidence to the Committee’s Inquiry into Complaints and Litigation in February 2011. The Committee has asked for further information on the number of complaints my Office receives and what action we take with them and I am happy to provide that information for 2009–10 below.
First Contact In 2009–10 my Office received 14,429 complaints about the NHS. We had carried over 2,458 complaints from 2008–09 so handled a total of 16,887 complaints in 2009–10. We closed 15,579 complaints in the same period, carrying over 1,308 to be dealt with in 2010–11. Of the 15,579 complaints closed, 351 were about matters outside our jurisdiction and we advised the complainant on how to take their complaint forward elsewhere. We can be contacted by letter, phone, text or email but the law requires complaints about the NHS in England to be made in writing. Also, before we accept a complaint we normally expect it to have been made to the NHS body concerned and completed local resolution. 4,496 of the complaints we closed in 2009–10 had not completed local resolution and were not in writing. A further 4,515 complaints were in writing but had not completed local resolution. Closing these complaints often involves engaging with the NHS body in question and can result in that body carrying out additional work or simply expediting the complaint. We also explain the complaints process to the complainant and advise them how to take their complaint forward. At this stage 1,373 complaints were withdrawn by the complainant.
A closer look: Further Assessment During 2009–10, we carried out a more detailed further assessment on 4,844 complaints. This involves a closer look at the detail of the case in order to decide if a formal investigation is needed, including talking to the body complained about, reviewing papers relating to the complaint or taking professional advice. Where we can, we will seek to intervene to resolve the complaint without the need for a formal investigation—a quicker and simpler way forward for everyone. In the case of 4,210 complaints, we were satisfied that there was no evidence of maladministration or unremedied injustice for us to investigate, or that we were unlikely to be able to achieve the outcome sought by the complainant e.g. disciplinary action against an individual clinician. We provided the complainant with a full explanation of what happened, or reassured them that the NHS body concerned had dealt with it appropriately, or explained why we were unable to help. Where our assessment reveals clear evidence of maladministration or injustice we consider whether we can resolve the issue quickly and effectively through our intervention rather than a full investigation. In 219 such complaints we worked with the NHS body and complainant to reach a satisfactory conclusion. In a further 69 we were able to provide one ourselves. Our interventions can result in a remedy such as an apology, a detailed cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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explanation of what went wrong or a compensation payment. We also accepted 346 complaints for a formal statutory investigation.
Formal Investigations Our formal investigations are thorough and impartial. At the end of each investigation we produce a report with our findings. During 2009–10 we reported on 180 investigations (this includes some investigations carried over from the previous year). If we uphold a complaint, we may recommend actions for the public body to take in order to put right what has happened and to learn from its mistakes. This can include an apology, payment to compensate hardship or injustice, compensation for financial loss and/or action to put things right. If we decide not to uphold a complaint because there was no maladministration or injustice, we explain the reasons for our decision. I hope that this explanation has been helpful. I stand ready to assist the Committee with the Inquiry in any way I can and to offer further written or oral evidence if the Committee would find that useful. Please do not hesitate to contact me if you require any additional information or clarification. I would also like to reiterate the message from my written and oral evidence that the new complaints system introduced on 1 April 2009 is quicker, simpler and more effective than the previous system. It is already demonstrating its potential and needs to be given time to prove its worth. Ann Abraham Health Service Ombudsman for England 24 May 2011
Supplementary written evidence from the Association of Personal Injury Lawyers (CAL 27A) Thank you for allowing me to give oral evidence to the Health Committee on Tuesday 10 May. In response to a question by Virendra Sharma MP, ‘what are the main reasons for the increase in the volume and the value of the claims against the NHS’, I told the committee that clinical negligence claims have reached the level they were at 10 years ago, with 10,000 claims being notified each year. This was based on the published figure for 2000–01 of 10,901 claims notified in total compared with the published figure for 2009–10 of 10,308 claims notified in total. As the Committee will be aware the Compensation Recovery Unit is notified of every claim made. Since giving evidence to the Committee, however, I have been made aware of the latest figures published in May by the Compensation Recovery Unit for 20010–11 which show that 13,022 claims for clinical negligence were registered. I therefore wanted to make the Committee aware of the very latest data available to ensure that the record of the Committee’s evidence is not inaccurate. Although on the face of it these figures represent an increase of almost 30% on the previous year, I would observe that it is important to look at the matter in context bearing in mind the incidence of claims over that 10 year period. This illustrates an increase in claims over 10 years of 19% or less than 2% per annum set against a much larger increase in that period of the number of patient treatments provided by the NHS. I would be happy to provide the Committee with any further assistance on this matter if it would help. I apologise for any confusion caused as a result of the publication of these further figures and I hope you will allow me to set the record straight. It is important to note, though, that, as the Committee heard in evidence, these figures are just a fraction of those of who are injured as a result of negligence within the NHS. In response to your question asking for evidence of the legal fees that have been paid over a period of years, please find enclosed the graphs provided by the NHS Litigation Authority to Lord Justice Jackson during his review of civil litigation costs.50 These graphs are included as Appendix 21 in the Preliminary Report of the Review of Civil Litigation Costs, which was published in May 2009. Lord Justice Jackson’s proposals for civil litigation costs, which are now being taken forward by the Government, will have a detrimental impact on access to justice for injured people, especially when coupled with the Government’s proposals for the reform of legal aid. While there were over one million adverse incidents reported to the National Patient Safety Agency between April 2009 and March 2010,51 there were only 6,652 claims notified to the NHSLA.52 Removing legal aid for clinical negligence, which at £17 million of the £2.1 billion legal aid budget would only save less than one per cent of that budget, would limit opportunities for injured people to hold the NHS accountable for its negligent actions. In Lord Justice Jackson’s response to the Ministry of Justice consultation on the proposals for civil litigation funding and costs in England and Wales, Lord Justice Jackson includes a handout which was provided for the 50 Jackson LJ Review of Civil Litigation Costs: Preliminary Report, May 2009, Appendix 21—not reproduced here 51 National Patient Safety Agency Annual Report 2009/2010 page 8 52 NHLSA Report and Accounts 2009–10 page 13 cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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Legal Action Group annual lecture on 29 November 2010. In this handout, Lord Justice Jackson quotes a figure from Professor Fenn that almost 40 per cent of claimants will be worse off if the proposals are implemented. That was the impact of his proposals assuming the Government accepted his recommendation that Legal Aid for clinical negligence remain at its present levels. His calculations do not take into account the impact of withdrawing Legal Aid from clinical negligence which would significantly reduce the ability of the few who presently do claim, to claim in the future.53 If you or the committee feels there is anything more that APIL can provide, please do let us know. Muiris Lyons, Immediate Past President May 2011
Supplementary written evidence from Browne Jacobson LLP (CAL 29A) Following the meeting before the Committee on Tuesday 10 May 2011 I should like to make three points of clarification.
Hourly Rates A question was put to Leigh Day & Co about their rates. The Guideline Hourly Rate published by the Senior Courts Costs Office applicable to partners in those firms who set up office in the City of London is £409.00. The rate for those firms with offices in Central London is £317.00. In the provinces, the highest guideline partner rate is £217.00. The NHSLA rates are as follows: London Provinces Nominated Partner 205 175 There are no more than 2 in each office— supervise and exercise limited delegated authority
Partner or Senior 195 160 solicitor
Solicitor 170 150 Legal Exec 105 100 Paralegal/trainee 95 80
It can be seen from the comparison that notwithstanding the fact that some cases are not successful (and abandoned at a very early stage—many after an initial interview or perusal of notes—so that very little cost is incurred) and notwithstanding the fact that in many such cases no payment, or payment at low legal aid rates is received, the very high base rates allowed by the Courts is more than sufficient to make good the cost of non-remunerative work. This is so even before application of success fees. The Committee should also be aware that Defendant firms bear very substantial costs associated with their contracts, of a type not borne by Claimant firms and that non-chargeable work is a major factor in the business models of all types of firms, whatever the work type.
Rates Claimed by Claimant Firms I explained that some (though not all) Claimant firms typically claim enhanced hourly rates on the basis that clinical negligence work is, according to them, so complex (some of it is, much of it is not, of course). Leigh Day & Co claim up to £450.00 per hour, as far as I am aware . (Many firms share my view that there is only very rarely any justification for this.) Thus, after application of a 100% success fee the rate is £900.00 per hour, albeit I would guess that the average recovery is about 55%.
The Guideline Rates These rates are based on historical, judicially agreed rates, to which are applied inflation based increases. Defendant firms used to apply the same rates. Over the years, they have been required, through market pressure and fierce competition, to focus on efficiency as well as on improving quality and significant added value services. Equally, on detailed assessment of costs, the District Judges are inclined to judge what is reasonable by reference to the costs incurred in other cases that come before them, not by reference to the costs savings that might be achieved if the Claimant market was subject to any drive for efficiencies that inevitably follow where either the Claimant, an insurer or Legal Aid body influences expenditure. At present, claimant firms set 53 Jackson LJ Review of Civil Litigation Costs: Final Report, December 2009, page 242 cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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their own benchmark and do not need, on a day to day basis, to focus on how they might litigate in a more cost effective way (without prejudicing their clients) in the way that defendant firms must do. I would estimate that a 50% success fee would see Claimant firms achieve a profit margin of at least 300%, an extraordinarily high profit margin even after taking account of the cost of claims which are not progressed, and referral fees, if paid. By way of example, we settled a claim in Feb. 2009 for £10,000.00 before service of the Defence. The Bill was eventually delivered in Nov. 2009 and the sum claimed was £67,000.00. Our costs were £4,500.00. We took the case to assessment. The District Judge was against us to such an extent that our costs draftsman was forced to negotiate part way through and settle the costs for £55,000.00. Thus, leaving aside the practicalities of taking every case to assessment as Ms Cooper suggested, we would be gravely disappointed and incur very significant expense were we to do so. Of course, we do challenge bills but the reality is that it is impossible to micro-manage costs, and only a paying client can bring any pressure to bear and deliver proportionality. In addition, we have met with very little success when requesting the judiciary to exercise its very wide discretion and case management powers to assist in control of costs before they have been incurred. I understand that the NHSLA is writing to you with the information requested by the Committee. Carole Ayre May 2011
Written evidence from Sands (CAL 38) 17 babies are stillborn or die shortly after birth every day in the UK, devastating the lives of 6,500 families every year. Whilst neonatal survival rates have improved over the last decade, stillbirth, including intrapartum stillbirth, rates have improved very little. Yet, despite how prevalent perinatal death is across the UK, in each individual trust, it is a rare event. There is a tendency therefore to see the death of such a baby as “just one of those things”. Parents feel answers for these deaths are not rigorously pursued; and the frustration for parents of not knowing why their baby died can last for years: “We didn’t go through the complaints process because at the time we were too overwhelmed by grief. It’s nine years since my daughter died but I wish I had pursued answers to all the questions I’d had, and not been intimidated by the medical professionals. I would feel I had been a better parent to her and would have answers for the rest of my family.” Bereaved mother “Because of the involvement of independent experts litigation delivers something parents do not get during the complaints process—an idea of what might have gone wrong and a sense of how things might have been better.” Lawyer acting on behalf of parents
A. Background: About Sands Sands, the stillbirth and neonatal death charity, was founded in 1978 by a small group of bereaved parents devastated by the death of their babies, and by the total lack of acknowledgement and understanding of the significance and impact of their loss. Since that time, Sands has supported many thousands of families whose babies have died, offering emotional support, comfort and practical help. Today Sands operates throughout the UK and focuses on three main areas: — supporting bereaved families; — working in partnership with health professionals to promote awareness of perinatal mortality and provide professional training in bereavement care. (Our widely acclaimed publication Pregnancy Loss and the Death of a Baby: Guidelines for Professionals is now in its third edition.); and — funding research that could help to reduce the loss of babies’ lives.
B. Overview 1. Parents and advisors acting on their behalf describe the NHS complaint system as “defensive”, “protracted” and a “paper pushing exercise”. Staff “close ranks” and there is not full and ready disclosure. 2. It is often the case that parents go through this difficult and lengthy complaints process for the Trust to state there was no sub-standard treatment, only for that subsequently to be shown not to be the case when the claim is investigated. One UK law firm, who receive one case enquiry a week relating to perinatal death and pursue around 25 cases a year, are successful in 90% of those cases: “The NHSLA act more like litigants than clinicians trying to learn lessons. Why does the NHSLA pursue cases that they cannot defend? Why are they not settling them sooner?” Lawyer acting on behalf of bereaved parents cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3. Parents of a baby who has died rarely pursue litigation for financial compensation. They litigate because: 3.1 perinatal reviews undertaken by hospital often contain conflicting or inaccurate information and parents see litigation, which involves an external and independent review of their case, as the only means to achieve full answers to events leading up to the death of their baby; 3.2 if the trust is to blame, they see it as a way of gaining a recognition of accountability and an apology for the death of their baby; and 3.3 and they see it as a way of gaining an assurance that the necessary changes to protocol and retraining programmes will be initiated to minimise the risks of such a tragedy being experienced by another family. 4. Parents feel language used by those responding to complaints is patronising, inappropriate, dismissive and insensitive. One parent was told in a letter that her grief had made it hard for her to properly remember events. 5. Letters contain jargon, explanations are superficial and actions taken are so broad brush as to be meaningless. Trusts commit to changes in care for which parents are never given any proof. 6. Parents naturally begin from a low-information base. Therefore, mediation can only work if parents are informed and have the support of an independent expert who will enable them to ask the right questions and determine whether questions are answered accurately. There will always be an imbalance of understanding and information unless parents are fully supported. 7. Because there is sometimes a lack of scientific information about why some babies die, clinicians can use this knowledge gap as a screen for system and care failures that require greater scrutiny, if services are to be improved and unnecessary deaths avoided. 8. We believe one of the reasons there is a sharp rise in litigation is because families are dissatisfied with the information they receive from Trusts. The complaint system is seen as ineffective and there is a feeling that the death of their baby is not taken seriously but dismissed as “just one of those things”. 9. Yet, such is the frustration with the system and the process, that even successful litigation does not satisfy many parents: “Many parents come to me with some hope that they can effect change. But the apology comes so late, after so much heartache and defensiveness that it means nothing anymore to parents.” Lawyer acting on behalf of bereaved parent. 10. Far from feeling confident in the NHS, the process of litigating against the NHS exacerbates existing psychological damage experienced by parents whose baby dies. Lawyers report that when clients undergo assessment for psychological damage, a consistent consequence of going through the complaints and litigation process is a lack of trust in the NHS as a health service provider.
C. Maternity Litigation—The Facts 1. The NHSLA receive around 350 maternity claims a year. After surgery, obstetrics and gynaecology receives the most number of negligence claims within the health service. 2. Since 1995, 61% of all negligence payments have related to claims arising out of birth. 3. Total cost of Clinical Negligence Scheme for Trusts maternity claims in 2007–08 was £163 million. 4. The most expensive negligence cases to the NHS are cerebral palsy claims which account for a massive 66% of all payments. While stillbirths in comparison only account for 2% of costs, because the baby has died and does not require specialist care, these cerebral palsy claims—which arise from failure to manage intrapartum care—are in fact near-miss stillbirths. Negligence issues relevant to cerebral palsy cases are also relevant to stillbirth. 5. In an NHSLA study54 of 100 stillbirth cases which were settled by the NHSLA between January 2003 and July 2007, it was found that the most frequent example of clinical negligence, occurring in 34% of cases, was misinterpretation of cardiotocography (CTG) trace. The frequency of this failure over several years would suggest there is much further to go in ensuring the lessons in understanding CTG traces are learnt. There is only a very slight (from 5.2 to 5.1 per 1,000 births)55 fall in the stillbirth rate in the past decade.
D. Recommendations for Improvement 1. There is currently no standardised perinatal review of a baby’s death. Each Trust conducts this review differently although usually once a month. It is unclear who attends these meetings. We believe the process requires scrutiny and analysis to establish minimum standards of review with minimum time frames. 2. When parents have complaints, the often poor quality of information available makes the process flawed and protracted by definition. Yet there is currently no move to improve this review process. 54 Study of Stillbirth Claims © NHS Litigation Authority 2009 , IBSN 978–0-9565019–0-5 55 Perinatal Review 2008, Centre for Maternal and Child Enquiries cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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3. A rigorous, fair and accountable review process must include the parent perspective of their care, when appropriate. “Parents are good historians.” Lawyer acting on behalf of bereaved parents. 4. Parents are rarely medics themselves; they therefore start from a low-information base and need specialist support and advice. Every effort should made to explain events leading up to the death of the baby by clinicians treating the mother/baby whether it relates to antenatal, intrapartum or neonatal care, including a copy and explanation of the baby’s CTG up to its death and a explanation of recognised guidelines/protocols specific to the case. 5. The process should be open and transparent; parents should be able to see the hospital review of their care once it is written, and if they so wish. 6. A review process which is rigorous, fair and open will answer questions for parents. It is not to apportion blame for blame’s sake, but to gain some measure of “truth and reconciliation”, to learn lessons and improve quality and safety of care for the future. 7. If parents remain unhappy with the response they receive, hospitals should initiate an external review of their case. This is supposed to happen but it is hard to know for certain whether
E. Case Studies/Personal Experiences 1. Baby J Baby J died on 5 November 2008 ten days after he was born due to complications arising from sepsis infection as a result of being exposed to the pneumonia virus, a bacteria for which his mother was treated with antibiotics after she collapsed within an hour of giving birth. The Trust produced an external report five months after J’s death, admitting liability for failures to overview J’s care adequately and said they would initiate retraining in the Trust. J’s parents settled out of court, but took their case further when details of the hospital’s external and Local Supervisory Authority (LSA) investigations came to light. After his birth, baby J was transfer to the post natal ward to be “monitored” following his mother’s collapse. However, all of baby J’s medical notes from this period up until he was transferred into special care were (and are still) missing, despite a police investigation. Parents were originally told their version of events and the version in staff statements for the investigations were the same, but it was clear from the LSA report they diverged in key areas. In December 2010, the Strategic Health Authority issued an apology with regards to the quality of the LSA report. The SHA has now initiated a review of the LSA reporting system in the North West. “The Trust has admitted broad system failures but we have so many questions that are not answered about J’s care. We feel people have lied. Parents need the truth to move on through their grief. Without it, grieving is 100 times harder.” J’s father Two years on, J’s parents still have many unanswered questions relating to J’s care. In February 2010 the Ombudsman declined to investigate because missing medical records meant the family were unlikely to get a “worthwhile” response. Initially, despite the family’s request, the coroner refused to open an Inquest on the grounds that the medical cause of baby J’s death was not in doubt. However, in April 2010 the Coroner did agree to open an Inquest into the case. Since there are few medical records for J’s care during his first day of life, witnesses will be required but staff are unlikely to remember events given the time lapse, and will rely on notes that have been taken retrospectively, which already conflict with the parents’ account of events. “The whole system is set up for you to give up as a parent. There’s no mechanism for ensuring there’s a proper investigation, that’s independent, rigorous and fair. You have to fight for it and why should we be put in this position? There should be minimum standards of investigation.”
2. Baby R Baby R died in late October 2009, due to placenta abruption while her mother was in hospital in early labour. Mother had presented in pain at hospital on and off for previous two days. Mother asked for a copy of her notes after discharge from hospital. She also asked for a meeting of with the hospital for a copy of the hospital’s internal review of her case. She took a friend who’d worked in Accident and Emergency with her to the internal review meeting for support. Internal review stated R had died at home in utero. This conflicted with the mother’s pregnancy notes recording both mother and baby’s heart rate in hospital shortly before the placenta abruption. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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“If we hadn’t had the notes we would have been fobbed off and they’d have told us she’d died at home.” R’s mother A meeting was organised with the Chief Executive of the Trust who initiated an external review. As a result of this conflict the family received an “unreserved apology” for the quality of care they received but not an admission that the care resulted in the death of their daughter. “ We knew and they knew that they’d been responsible but we will never get them to admit as much because of the legal implications. But we don’t want the money. It will not bring our daughter back.” Family are pursuing an investigation of staff members at the Trust, through the General Medical Council and Nursing and Midwifery Council. “I personally don’t think going through the complaints system makes any difference. I can’t ever see things changing. It’s just not considered a high priority. There’s an acceptance that so many babies will die every year and our baby is just one of those statistics.”
3. Baby L Baby L died on 29 June 2009. One of a twin her heart rate was lost during labour. Baby L was stillborn, revived and died two days later in special care. In the second week after Baby L died, parents organised a meeting with the hospital to answer questions around L’s death. But after two meetings with the Trust, there was still conflicting information and unanswered questions. Parents decided to pursue their case through litigation. “We felt that if we went through the complaints procedure we just weren’t going to get anywhere. The hospital has been so obstructive and unhelpful. We have no faith in them at all.” L’s mother The litigation process has been protracted. On L’s anniversary a year later parents requested a third meeting with the hospital . At this meeting they were informed that a Serious Untoward Incident report had been conducted eight days after L had died which answered some of the questions they had been asking the Trust for months, but also conflicted with their version of events. They were not asked for their input or informed that an SUI was being conducted at the time. “She was our daughter and we were on the distribution list for the SUI report, but we were completely disregarded.” Despite assurances from the Trust that they will make the necessary changes to procedures at the trust, L’s parents are continuing to pursue their case through the courts. “It’s easy for them to say that they’ll change procedures but for 17 months they didn’t communicate with us and every time they have we’ve seen different people. It’s only paper work being pushed back and forth. Litigation is the only way they will take us seriously.
4. Baby W Baby W died in utero at 33 weeks on 26 December 2008 as a result of obstetric cholestasis (OC) in mother. Mother’s poor history of dealing with complaint system previously led her to bypass complaints process and file for medical negligence at two Trusts. Case still pending. Mother had symptoms of OC at 30 weeks but was tested and told tests were clear. Symptoms worsened while staying with her parents away from her Trust, and she was admitted to hospital. She arrived at hospital at 10.30am and informed staff of her OC symptoms; her bloods were taken at 1pm but the baby’s heart rate was not monitored all day. At 6.30pm she was told that her liver function tests and bile acids were 10 times higher than the normal value and she would have to be delivered by emergency C-section. By this time CTG confirmed W had died. Mother was diagnosed with acute fatty liver in pregnancy, was seriously ill and kept in high dependency unit for a week. A midwife at the hospital privately urged her to file for negligence. Mother asked for her medical records at both Trusts, her home Trust and the Trust where W had been born. There were inaccuracies in both: no record of her mentioning her symptoms for OC at the Trust where baby W died, and no record of her OC test results at her home Trust. W’s mother was given information about the Patient Liaison Association but had experience of the complaint system when her first daughter was born, because a midwife had been “aggressive and rude”. She’d found at that time that staff closed ranks and denied the sequence of events. “I had no faith in the complaints system after my first experience so I felt I had no choice but go straight to litigation when W died … I don’t want money. All I want is for the people responsible to be held responsible and to know that this won’t happen to another family.” cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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In Conclusion: We believe a more robust, open, fair and speedy response to complaints, where parents are much better supported and advised in going through the system, would result in parents feeling included in a process which concerns a personal tragedy the implications of which will last for years. We believe the NHS will also gain both financially and in the quality of service it provides, as a swift, responsive, accountable system will result in less litigation, more lessons learnt, fewer deaths and improved quality of care. Sands would welcome any role it may be able to have in improving the way hospital complaints are managed. December 2010
Written evidence from Miss Andrea Burke (CAL 46) Section A. Complaints 1. The reasons for the recent sharp rise in NHS complaints I. The main reason is that of assumed status inequality, ie health care professionals assume that they can treat patients or prospective patients as they think fit on the basis that the patient has become a resource burden based on the premise that demand exceeds supply. The latter has been driven by several factors including; longer life expectancy, migration and immigration. As citizens, paying one of the highest rates of taxation our rights to a free, accessible and quality health service have become eroded and, to a vast extent, nullified. II. Thus, in most cases, the complainant’s legal rights to complain about unprofessionalism or even question it is met with hostility by NHS managers. The NHS Complaints Policy and Procedure and NHS Complaints Legislation are often not being adhered too. When things go wrong, the primary concern and strategy of the governing NHS trust is to issue a passive apology in which they hope to pacify the complainant without conducting a thorough investigation to identify the truth or root cause of the problem III. This results is a rise in complaints as it is often the case that the complainant, especially when he or she witnessed or experienced the situation, that he or she knows the truth and are further aggrieved, by late and exceedingly late complaint responses, which are based on a defensive NHS account and perception of events. For the relatives (or the harmed or dead), not knowing the truth leads to complainants blaming themselves for the trust they gave the NHS to provide a professional service and avoiding the truth is disrespectful to peoples life’s. IV. Any acknowledgement of error or mistake is in practice accompanied by an apology with a lack of surety of improved practice which does nothing for the complainant; it neither assuages the NHS responsibility nor gives any evidence whatsoever that “lessons have been learnt”. The underlying problem for the rise in complaints is one of; institutionalised status inequality, increasingly poor practice and lack of effective monitoring of employees competence and trustworthiness. V. Evidence can be gleaned from my personal experience below: The complainant was justifiably aggrieved because it was a severe situation for her disclose abuse/distress (in my case throughout the night) and be informed that despite this the response claimed that I had not reported any distress at night. In my specific case, if the investigator had read the detailed medical record, written by those whose facts were shown to be erroneous, the investigator would not have been able to make summary judgements. VI. This status inequality and lack of witness corroboration has led to abuse of the service for a patient whose “voice” is being given no credibility in issues involving maltreatment or redress for justifiable complaints. In intuitional terms, the strategy is one of intimidation and finality as the complaints response is normally signed by the Chief Executive, generally after having being given the legal stamp of approval, the complaints investigator remains nameless. VII. The aim is firmly to avoid any potential recourse to litigation, deny negligence under the pretence of “impartiality” the conclusion being that there is no fairness for the complainant who is not only denied a fair hearing; their character is frequently brought into disrepute, confidentiality breached, services cut off, as they become blamed rather than respected. This only exacerbates their problems as they naively endure the “pain of complaining” which is predicated at no financial cost. VIII. The current practice is however to employ unregulated and vast legal expense to “ward off” complainants regardless of the justice of the cases brought forward and promote the culture of predetermined failure on the part of the complainant in the face of a monolithic institution with unlimited legal resources at its disposal. IX. Poor practice and lack of professionalism at even the basic level are critical factors in the obfuscation of determining the truth and further infantilising the patient and their legitimate rights to good practice. This can be shown when patients access their own medical records (which are often based on inaccurate fact, omitted detail, story telling carelessly written, and illegible shorthand notes with medical abbreviations which do not reflect the principles of open access let alone ward policy. These medical notes (which are glorified as cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:31] Job: 011252 Unit: PG05
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clinical evidence) are often poorly photocopied, poorly circulated and are frequently not signed by NHS staff let alone patients. X. It can be very alarming and hurtful for the complainant to read medical notes which is aggravated by delays and a lack of respect to timelines. This process is conveniently deliberate as they do not want complainants to access evidence which could potentially expose their own incompetence in investigating thoroughly or their lack of appropriate diligence in accurate recordings, medication errors and lack of observations. XI. Making matters worse, inconsistencies, mistakes and even forged entries are not uncommon but are used selectively and mutinously (without patient knowledge or an appropriate safeguard to their confidentiality) to confirm an inexorable act for (no matter how well proven) the complainant’s view will always be subservient to that of a higher authority. Who are assumed, to be correct and this is a problem complainants completely have to repeatedly face as what “appears” to be the case is often not the case. Despite this truism complainants repeatedly face the same problems and often feel that they are being sent running in circles to divert responsibility, as increasing disillusionment rather than constructive change becomes an experiential reality. XII. The Ombudsman believes whatever the trusts tell them without even doing on site inspections. They never meet with the complainant and complainants have no representation or involvement of in any of their decision making panels. The complainant’s “voice”, is further muted as they lack the equivalent wealth of legal resources, power or finances to support legitimate challenges. Legal aid lawyers lack resource capacity and complainants are deliberately isolated, their knowledge and experience is not being effectively utilised at any level: In my case, bureaucracy was utilised as a strategy and default mode of practice. It took a process of over a year of being sent back and forth between the Health Care Commission and the trust for an independent investigation by the Health Care Commission to be carried out. This is for financial reasons and once again it is the complainant that suffers unfairly so, often being conceived as their own worst enemy through their persistence and determination in seeking the truth. It my case the Health Care Commission did conclude that there was a lack of transparency and bias to the Trust’s investigation, a lack of incident reporting, a lack of genuine empathy or concern, brief responses that evaded many concerns regarding unprofessional and disrespectful treatment. Many of these issues, to my utter dissatisfaction were sent back to the Trust, for further work which, after the ordeal they had put me through and after having read the offensive comments in the complaints file highlighting their contempt for me. I had absolutely no confidence or belief that they would instigate any recommendations to improve my circumstances. In fact, they tactfully ignored any recommendation that would benefit me, deliberately and, in my view, maliciously, excluding the complainant further, this was reinforced through the ineffective intervention by the Parliamentary, Health Care Ombudsman, wasting years of my time to achieve nothing but a “not worthwhile outcome”. XIII. The Trust and the Ombudsman exploit and create this situation unless there is a particularly unusual phenomenon (for example, mid Staffordshire) in which complainants managed to join together and were not dispersed for geographic reasons only. Interestingly, this “unusual situation” managed to escape the attention of the Health Care Ombudsman after a damming HCC report. XIV. The reality which is clearly expressed by the Trusts is the fixated view that they are doing a competent job under increased resource pressure and without rigorous inspections and legally binding recommendations they are under no jurisdiction to change. Complainants are perceived as a cause for increased irritation for draining resources. Many of whom are treated in a similar way to an NHS whistleblower or are labelled vexatious without their knowledge, to silence their concerns. This bears no correlation to the fact that the regulatory authorities have repeatedly and historically failed to learn from the past and make any evidential or positive difference to the level of abuse and maltreatment in the NHS.
2 The effectiveness of the new complaints system introduced on 1 April 2009 I. The new two tier complainants system is lending itself to neither truth nor any sense of justice for the complainant. All correspondence between the Trust and the Ombudsman is kept secret as not necessarily in the best interest of the complainant to know. NHS lawyers are being further supported and not being effectively challenged by the Health Care Ombudsman who are colluding rather than reforming the NHS, through beleaguered apologies which make no consequential or evidential difference: My experience and understanding was that the closure of the Health Care Commission was designed to make things easier for the complainant, help alleviate the distress experienced and remove the tiers of unwieldy bureaucracy. Unfortunately, this was not so as I experienced a continuation of the latter. When the Health Care Commission closed, I was informed by telephone that my second case was being sent to the Health Care Ombudsman however the Ombudsman refused to accept my word, again I felt belittled as if I was not telling the truth. The Ombudsman would not accept my version of events and stated yet again my case had been sent back to the Trust. It was by a stroke a luck that I managed to prove by a vague reference to a misplaced scribble that the Health Care Commission had indeed informed me of the opposite. This is an abuse of power for which the Ombudsman tried to put the onus of responsibility back onto myself, the complainant, to reproduce a whole case history rather than take and accept accountability cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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for the smooth transition of sensitive case data. It is now December 2010 and I still have not received a case outcome. This was after writing the two complaints in March 2008; the newly improved and newly resourced complaints team acknowledged the complaints but 2 years later no reply. Even my advocate at ICAS, funded for out of the public purse could get no reply; interestingly enough the Ombudsman managed to get a response to my complaint before me. This is yet another abuse of power and represents no change other than more power to the all powerful to break the law, effectively or ineffectively disposing of complaints as the length of time taken to resolve a complaint disadvantages the complainant. II. I note with concern that the Health Care Ombudsman (PHSO) are now not even investigating independently as it is too costly; they operate as they see fit, colluding both passively and tacitly with the trusts to dispose of complaint effectively. Facts from the PHSO reveal that they only investigate less than 2% of complaints, thus leaving over 98% unresolved; they have never 56investigated a “reconsidered” complaint yet cost the tax-payer in excess of £34m per annum. III. Even if and when unremedied justice is finally acknowledged, the case is not upheld by the PHSO unless it is satisfied that it will lead to worthwhile outcome for the complainant to conduct an investigation. Somewhat lost in this entire process is the truth as an end in itself and this is my view is a travesty of justice denied by timeless inquires based on inequality, and exploitation of the complainant. Who suffer years and years of trauma and severe distress as the whole system gives rise to fears, develops and creates disappointments and reduces his/ her capacity to act through tactical and procedural complaints disposal to protect against a successful Judicial Review. In which the Judge is primarily concerned with whether procedures have been lawfully followed, and not the rights or wrongs of an individual decision. These procedures give the PHSO the right to determine what constitutes maladministration, which differs from one case to the next, without a defined criteria which should be based on an enactment of NHS complaints legislation, unlawful breaches by the NHS trusts, not given apriorie consideration.
3. The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Services); and referral to the Ombudsman I. This represents a way in which the Ombudsman can reduce the number of cases on their hands. Why there is s many as over 100,000 complaints at the Ombudsman’s door in 2009–10, this is due to the complete failure of the whole system. These Trusts, with low standards, should be reported to the government and a question mark put over their continued funding unless they (a) follow complaints legislation, policy and practice (b) care about complainants (c) stop wasting money to defend the indefensible (d) treat patients like human beings and not “faulty machines” and (e) stop the monopoly of control the medical profession has over and above other professionals and citizens: The role of ICAS is not to serve the needs of the Ombudsman, remain impartial rather to work to ensure the rights of complainants are met and that includes making the system more transparent with e clear and illustrative case of successful advocacy work which have led to service improvement.
4. The role of Patient Advice and Liaison Services as a “gateway” to the complaints system The role of Pals should be to avoid the need for complaints and ensure where possible mistakes are quickly rectified through professional mediation, challenge and advocacy.
5. The failure of some Foundation Trusts to report numbers of complaints If they are failing to report the number of complaints then this begs the question, why do they have the status of a Foundation Trust? Complaints should be viewed as; a learning opportunity, a sign of active ownership and citizenship, a shared consensus on away forward not as a way backwards. In fact, the number of complaints made by an individual is used as a means to strike them off for a service, again the voice of the complainant and potential to improve services is not valued.
6. The Government’s plans for future complaints-handling arrangements What are required are greater transparency and a robust change to the way in which complainants are treated. What should be ensured are; an end to secret and oppressive practices, a charter for patient’s rights including a duty of candour, care and quality and poor service should be robustly challenged by advocacy agencies to ensure a fairer deal for complainants at a local level which conforms to National and Legal standards of quality.
7. How data from complaints will feed into the planned new commissioning arrangements “Building on existing complaints handling structures, we will strengthen arrangements for information sharing” The lack of information sharing has been the hallmark of why the NHS is failing and the NHS complaints system is bursting at the seams with complaints. Hiding, disguising or disposing of the problem creates more questions than answers and is indeed the rationale for doing so is highly questionable. However again highlighting evidence from my own case: 56 http://www.whatdotheyknow.com/ Annotation D Speers 8/10/2010 cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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If this is truly the case, it begs the question, why the Ombudsman has recently declined to investigate why the Trust in question failed to put into practice the robust review. I was assured would be done by the Caldecott Guardian Committee by the Health Care Commission re: my concerns re: information sharing. Apparently, there would be no worthwhile outcome to the complainant or other service users. I find this approach revealing and am most concerned at the secret nature of communication between the Trust and the Ombudsman. It epitomises the exclusion of patients in their own care: a practice which had dominated the NHS, it is not progressive and creates a lack of legitimate interest, creating an assumption of a hidden agenda rather a transparent and externally accountable service to the public.
Section B. Litigation 1. The cost of litigation against the NHS The cost of litigation represents financial barriers to legal rights by complainants. Also, the taxpayer bears the burden for the NHS to robustly defend the NHS at all costs instead of providing a high standard of customer service. Ex gratia payments should be made whereby a complainant is not financially disadvantaged due to NHS errors and so facilitate curbing the problem, instead of escalating it to increasing levels of dissatisfaction and resource exhaustion. The staffing level in the NHS for patient care is poorly managed and under-staffed for medical staff including doctors; neglected patients are a common sight. Conversely, NHS managers and clinical negligence lawyers continue to gain financially. This raises a question mark over the complaints system, if it is indeed cost effective and what proportion of redress is given to complainants. A fraction of this is due to outgoings on successful patient litigation and the greater part to saving revenue funds, to protect a self perpetuating inefficient bureaucracy creating more and more jobs for less and less results. GP accountability is essential as the Shipman case evidenced. Although they are regulated by the GMC, GPs medical records are not ordinarily open to scrutiny and difficult to challenge by the next of kin. Transparency and scrutiny are essential if litigation is to be a “last resort”.
2. Reasons for the inflation of litigation costs in recent years This is due to lawyers charging excessive fees for knowledge that should be shared and openly discussed and lack of facilities to offer legal insight. Advocates at present do not impart their knowledge or use their knowledge to the advantage of complaints. Lawyers are viewed as experts and there is a dearth of legal advice available to the public.
3. The impact of conditional fee (“no win, no fee”) arrangements on litigation against the NHS This encourages ruthless and insensitive case work; justice is driven by commercial forces instead of the rights of active citizenship, public accountability, public ownership and responsibility for NHS as a service industry
4. The effect of litigation on the development of an open reporting and learning culture in the NHS This should be the role of the NHS complaints system; health will become a co-modified and lead to an open learning and reporting culture. Complainant’s knowledge, skills and experience should be utilised as part of a shared vision. Visibility, transparency and fair means of negotiation are pre-requisites to even-handed litigation: legal practices, particularly conditional fee, mitigate against these laudable aims.
5. The Government’s intentions regarding the implementation of the NHS Redress Act 2006 The complaints systems should offer redress especially if the work of an individual had demanded sustained effort, distress, violation and loss.
6. The possible benefits of a statutory right to compensation for “treatment injury” from an independent fund, without the need to prove negligence, as required under tort law I would like to see a departure from Tort although I think treatment injury is difficult to define as emotional and psychological damage caused through being treated as a dishonest citizen has affected my life, wellbeing and career and leaves a complainant emotionally, psychologically drained and effects their work performance both directly and indirectly and their family and personal relationships. Treatment lacks flexibility and choice unless one can afford private treatment; this is particularly the case in NHS therapy, who put patients on never ending waiting lists, cherry pick clients, with paternalistic and apolitical approaches largely blaming the individual rather than challenging or supporting their right to challenge the abusive treatment which they are frequently party too, generally opposing rather than supporting complainants and their rights. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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Statutory right to compensation from an independent fund would remove to a degree the bureaucracy and vested interests of parties. Objectively determined categories for “treatment injury” would instigate a process whereby visibility and transparency would have a greater opportunity to thrive.
Finally, it is important to emphasise to the select committee that until healthcare professionals are under a legal obligation to be truthful [Duty of Candour “Robbie’s Law”] following an adverse clinical incident which robustly evidenced why legislative reform is required as a duty of mandate A failure to so, will lead to no change as procedures and medical negligence litigation will be critically compromised which ironically costs more rather than less to the state deficit. December 2010
Written evidence from the Nursing and Midwifery Council (CAL 63)
Summary
1. The NMC is the statutory regulator for nurses and midwives across England, Northern Ireland, Scotland, Wales and the Islands. We exist to safeguard the health and wellbeing of the public by: 1.1 registering approximately 660,000 nurses and midwives and ensuring that they are properly qualified and competent to work in the UK and the Islands; 1.2 setting their standards of education, training and conduct; and 1.3 providing advice and guidance to help them keep their skills up to date.
2. We also ensure there are fair processes to investigate allegations or complaints made against nurses and midwives who may not have followed their professional code of conduct—the Code: Standards of conduct, performance and ethics for nurses and midwives—and who may pose a threat to the public health and wellbeing.
3. We do not represent staff.
4. The NMC has a close association with the local NHS complaints system however, as an independent regulator we are not a formal part of this system. This association can at times be confusing to the public and stressful to navigate. This submission seeks to provide the Committee with information that: 4.1 clarifies our role within the wider complaints environment; 4.2 provides statistical information on the number of complaints we receive; 4.3 provides examples of steps we have taken to develop an understanding among employers and the public of our role within the wider complaints system; and 4.4 highlights areas of concern we have with the complaints environment and offers suggestions of how these might be mitigated.
Role in the Complaints Process
5. Of the nine professional healthcare regulators the NMC has the largest number of registrants working within the NHS and by association a link to the NHS complaints procedure. Between 2008 and 2010 almost half of all complaints we received related to practice within the NHS.
6. Complaints received often come to the NMC when complainants do not feel there concerns have not been dealt with adequately at a local level. They also come directly without having been looked at locally first.
7. The NMC’s Fitness to Practise (FtP) department process all complaints we receive about a nurse or midwife’s suitability to be on our register. Consideration is then given to whether or not to investigate the complaint based on one of the following criteria: professional misconduct; convictions and cautions; lack of competence; or health related problems.
8. We operate a quasi-legal system, gathering evidence through investigation before considering whether action needs to be taken against a nurse or midwife. This is done through sanctions; restrictions of practice or in more serious cases removing them from our register and in doing so preventing them from practising in the UK.
9. The process is transparent, fair, proportionate and solely focused on public protection. Anybody can raise a complaint. Those received are categorised as being from: employers; police; members of the public; professionals (organisations or individuals) or others.
10. Complaints relate to nurses or midwives across a range of other settings outside the NHS including the independent sector and residential or nursing homes. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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Rise in the Numbers of Complaints 11. The chart below demonstrates that the number of complaints received by the NMC is increasing, particularly from those received from members of the public. At the same time, the number of complaints received from employers is falling. Source 2007–08 2008–09 2009–10 Employer 785 53% 847 48% 1,197 40% Police 429 29% 404 23% 576 19% Members of the public 131 9% 296 17% 651 22% Other professionals (organisations or 14 1% 27 2% 58 2% individuals) Other 119 8% 185 11% 506 17% Total 1,478 100% 1,759 100% 2,988 100% Source: NMC Fitness to Practise Annual Report 2009–10 12. In 2009–10 the NMC received 2,988 complaints questioning a nurse or midwife’s fitness to practise. In 2008–09 the number was 1,759. In 2007–08 this was 1,478. A 102% increase in three years. Within this same period the number of complaints received from members of the public has more than doubled, increasing from 9% (131) to 22% (651).
Developing an Understanding of the NMC Complaints Procedures 13. As the number of complaints has increased the NMC has undertaken awareness raising activities to grow public and local employer knowledge of the NMC and our processes to improve the complaints experience. In 2010 activities have included: 13.1 creating prominent links to information on how to report a nurse or midwife to the NMC and to outcomes of hearings on the home page of our website; 13.2 launching our Safeguarding Vulnerable Adults on-line videos, which show examples of how a nurse, midwife, employer or member of the public might spot a situation where raising a complaint would be appropriate; 13.3 creating new leaflets for employers and witnesses to provide information on our FtP service and complaints procedures; 13.4 creating new online leaflets for the public to provide information about our complaints procedures and working with other regulators to revise a joint public leaflet; 13.5 developing a strategy to better handle and monitor sensitive and high profile cases, such as those involving patient deaths, including increased sensitivity and timeliness of our correspondence; 13.6 meeting regularly with employers on specific high profile cases such as the Mid-Staffordshire NHS Foundation Trust; 13.7 engaging, from April 2010, with nurse and HR directors and heads of midwifery through our Meet the NMC programme, where our Director of FtP makes a presentation and holds a Q&A session to ensure attendees have a good understanding of the process to help ensure appropriate referrals; 13.8 commencing, from October 2010, a programme of employers’ roadshows at venues across the UK for line managers of nurses and midwives to grow their understanding of the complaints process; and 13.9 appointing a new FtP Head of External Liaison with a remit to be a dedicated point of contact on fitness to practise issues and concerns for all NHS directors of nursing across the UK—the role may expand into the independent sector. 14. All leaflets and online resources can be viewed at www.nmc-uk.org.
Improving the Complaints System Cross regulatory working 15. The NHS complaints system is part of the wider patient safety and complaints environment that includes other professional and systems regulators. 16. The simplification of the NHS complaints system from three to two stages in April 2009—removing the system regulator from the complaints process—has lead to an increased need for cross regulatory working and information sharing among the wider complaints environment. This cross working is essential to ensure triangulation of warning signs to spot systemic failures in patient care. 17. In September 2010 the NMC signed a memorandum of understanding (MoU) with the Care Quality Commission (CQC) setting out principles of cooperation, including the cross referral of concerns and exchange of information regarding health and social care services in England. In February 2011 we signed one with the Scottish Commission for the Regulation of Care and are exploring further MoUs with the equivalent bodies in cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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Northern Ireland and Wales. We already have developed a MoU with the General Medical Council and the Crown Prosecution Service and a joint MoU with the Association of Chief Police Officers.
Proactive regulation 18. The NMC understand that patients and their families may not be aware of our complaints process and that it can be stressful and confusing for them. To help ease this burden the NMC follow news reports and, where a nurse or midwife’s misconduct is mentioned, check whether the matter is already known to us and, if not, undertake initial enquiries. Examples where this has taken place has been the Mid-Staffordshire NHS Foundation Trust inquiry and at a number of nursing homes.
Speeding up the system 19. The NMC received 6,225 complaints between 2007 and 2010. However, the NMC believe that a large proportion of those complaints should have been dealt with locally. Of the complaints received we found that 1,735 had a case to answer about their conduct or competence and were referred to the conduct and competence committee, 1,171 (82%) of these cases received a final sanction. However, dealing with more cases at the appropriate level would increase the speed at which patients and their families received a resolution to their complaints. 20. As explained in paragraph 11 the NMC has in 2010 made great efforts to improve employer knowledge of what constitutes a complaint due for NMC consideration. We hope their deeper understanding will help to speed up the process. 21. We also believe our existing legislation could be improved to allow the NMC to be responsive to patient complaints. We would like powers similar to other regulators whose current legislation provides the ability to take decisions quickly, for example the powers to: 21.1 provide our Registrar the discretion to close cases at an earlier stage where it is clear that there is no case to answer; and 21.2 provide our Registrar the discretion to investigate more serious cases, such as incidences at Mid- Staffordshire NHS Foundation Trust. Currently these cases must still go through the investigative committee process which can take several months. 22. Throughout 2010 the NMC has been asking Government for secondary legislative changes to grant these powers as a way to reduce the bureaucracy of our procedures, enable decisions to be taken swiftly and to better protect the public and the complainant experience, whilst remaining fair and objective. We welcome the Government’s recent Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff command paper which commits to “commission[ing] a simplification review of the legislative framework for professional regulation” (2011, p13). We look forward to working with Government over the long term to help practically realise this simplification through a single act of parliament. In the short term we will continue to press for secondary legislative change to speed up the process and to enhance patient safety 23. Finally, the NMC also receive a significant number of complaints from members of the public who wish to complain about band 1 to 4 healthcare support workers. The recent Parliamentary Health Services Ombudsman’s report Care and Compassion?, provides good examples of cases where these workers discharge poor patient care. Regrettably the NMC do not regulate this workforce. This means that time is spent on initial investigations that cannot proceed further once it is established the subject of a complaint was not a registered nurse or midwife. It also demonstrates that there exists a clear patient safety issue around this unregulated workforce.
Leadership Accountability and Raising Concerns 24. The need for more complaints to be dealt with at a local level points to a wider issue of the need for more leadership accountability and training, particularly when dealing with complaints or concerns raised by professionals. 25. The first stage report of the Robert Francis Independent Inquiry into care provided by Mid-Staffordshire NHS Foundation Trust January 2005–March 2009, has highlighted how management there failed to respond appropriately when healthcare professionals raised concerns over poor care: “It has become apparent that many staff, during the period under investigation, did express concerns about the standard of care being provided. The tragedy was that they were ignored” (2010, p3). 26. The NMC has advocated for many years the need for a more open reporting culture in the NHS where professional concerns are openly welcomed by leadership and acted upon. In October 2010 we released our Guidance on Raising and Escalating Concerns to help signpost professionals to how and when to make and appropriately escalate a concern (http://www.nmc-uk.org/Nurses-and-midwives/Raising-and-escalating- concerns). 27. Creating an open reporting culture could reduce any culture of professional resistance to the complaints system. It would also significantly improve patient confidence that their complaints would be dealt with appropriately and not ignored, enhancing their experience of the NHS. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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28. The NMC welcomes the recent white paper Equity and Excellence: Liberating the NHS emphasis on promoting an open and honest culture where professionals are empowered to challenge, interrogate, and learn from mistakes (2010, p.4). Patient safety will continue to be at risk unless healthcare professionals feel confident that employers will listen and respond appropriately to their concerns, without fear of persecution. 29. The Health Committee may wish to consider as part of its inquiry the work of Public Concern at Work and the NHS Social Partnership Forum whose document, How to implement and review whistleblowing arrangements in your organisation, strongly recommended robust reporting procedures at a local level (http:// www.socialpartnershipforum.org/publications/Pages/Publications.aspx).
Transparency 30. Publishing annual reports, as suggested in the white paper Equity and Excellence: Liberating the NHS would help bring transparency and openness to a sector that appears to have lost the public confidence in recent times. Highlighting the performance of the NHS’ complaint handling process may give the public confidence that their concerns are being handled appropriately. 31. In 2009 the NMC initiated a central management system with our FtP service. This will be used to collate complaint data based on themes. These can then be used to identify common areas of professional failure to target areas of investigation and identify where extra professional education, training and standards of practice are needed. March 2011
Written evidence from the Medical Protection Society (CAL 12) Summary Complaints — The increase in complaints is not wholly attributable to an increase in patient dissatisfaction. — The new complaints system can work well where it is fully understood, properly supported and correctly followed. — There must be adequate resources to deal with complaints properly and to a high standard. — Clarity is sought on how complaints about commissioning will be managed, and how the complaints role, currently performed by PCTs, will be carried out in future.
Litigation — UK compensation levels for the most severely injured are now amongst the highest in the world, including most states in the U.S. — MPS’s highest UK settled claim to date was over £8 million. — Inflated litigation costs are due to increasing claims, increasing legal costs, damages inflation, and legal and regulatory change. — We support the recommendations of Lord Justice Jackson in his review of civil litigation costs. — Claims arising from NHS treatment should be exempt from the provisions of the Law Reform (Personal Injury) Act 1948. — We support and advocate the development of an open reporting and learning culture. — MPS supports proposals which enable early identification of adverse incidents. Thorough investigation and fairness for all involved must be central to any new scheme. — No fault compensation schemes can appear attractive but constructing a scheme is highly complex and most studies show them to be prohibitively expensive.
Introduction 1. The Medical Protection Society (MPS) is the leading provider of comprehensive professional indemnity and expert advice to more than 270,000 doctors, dentists and other health professionals around the world. We have over 100 years experience and operate in 40 countries around the world. In the United Kingdom around 170,000 doctors, dentists and other healthcare professionals are members representing around 50% of all doctors and 70% of all dentists. 2. As a mutual, not-for-profit organisation we offer members professional support and expert advice, on a discretionary basis, with legal and ethical problems that arise from their professional practice. This includes clinical negligence claims, disciplinary and professional regulatory investigations, inquests, complaints and general ethical and professional advice. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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3. We advocate a culture of openness and provide training in open disclosure and better communication for health professionals. In our publications we promote a learning culture, making use of our claims experience to highlight common mistakes and spread awareness of specific risks.
Complaints The reasons for the recent sharp rise in NHS complaints 4. There are several reasons for the recent increase in the number of complaints. We do not believe it is wholly attributable to an increase in patient dissatisfaction. 5. There has been a change to the definition of a complaint. Prior to the introduction of the April 2009 Regulations many complaints were dealt with informally as problems through local Patient Advice and Liaison Services (PALS). Since 2009, anything that is not resolved within 24 hours is classed as a complaint. This has resulted in a substantial rise in reportable complaints. 6. Cultural changes within the NHS, where feedback is invited more frequently means patients are generally better informed about both the care they receive and the complaints process itself. A further factor is the increased media focus on the performance of the NHS.
The effectiveness of the new complaints system introduced on 1 April 2009 7. The process can be effective where maximum use of the planning stage is made to listen to the complainant’s concerns, apologise, and discuss with the complainant the way the matter is being handled. Failure to do this, results in misunderstandings and a lack of focus on the outcomes sought. 8. A particular weakness is the level of training provided to practices. Historically, this has been provided by PCTs but stretched resources and their forthcoming abolition has affected this aspect of their role. This leaves practices isolated and ill-informed, and needs addressing. 9. There remains considerable anxiety about apologising or admitting errors, leading to disciplinary action or litigation. Although members who approach MPS receive advice on these issues and we actively encourage a culture of openness, we believe there is a general need for proper resources, support and training to be provided and centrally coordinated.
The effectiveness of the constituent parts of the complaints system: local resolution (supported by the Independent Complaints Advocacy Service); and referral to the Ombudsman 10. The new regulations took away the obligation on PCTs to provide conciliation, which was often extremely helpful in resolving complaints. Although some have retained this service, we find that it is patchy and should be reinstated, possibly through the new HealthWatch bodies. 11. MPS believes the complaints system can work well where it is fully understood, properly supported and correctly followed. Some of the areas where improvement is needed to ensure effectiveness are: — Initial planning. — Flexibility over how matters are investigated. — Drawing conclusions from the evidence, identifying areas of poor service and putting this right. 12. In the interests of openness and balance, the complainant and the complained against should receive the same information. At present, when a decision is made by the Parliamentary and Health Service Ombudsman (PHSO) not to investigate a particular complaint, a detailed letter is sent to the complainant, but the complained against are merely told that no further action is being taken. We recognise the PHSO has recently expressed a desire to share information about complaints more widely, and we note the Department of Health’s intention (set out in Liberating the NHS: Legislative Framework and Next Steps) to strengthen these arrangements. We look forward to seeing the detail behind this proposal in the Health Bill once it is published. 13. The Office of PHSO does not provide a guiding tariff for financial remedy (although the Local Government Ombudsman does). We believe there needs to be greater understanding of how these decisions are made and levels of payment calculated. We also believe the complaints and clinical negligence systems should be kept separate; we do not feel it is appropriate for the PHSO to comment on whether or not a case involves negligence.
The role of Patient Advice and Liaison Services as a “gateway” to the complaints system
14. We recognise the advantages for organisations of close, joint working with PALS and we believe this should be encouraged more than happens presently. There must be adequate resources to deal with complaints properly. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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The Government’s plans for future complaints handling arrangements 15. We believe greater clarity is needed about the process for: — Patient’s who may not wish to complain directly to their GP. — Complaints made about a commissioning decision.
How data from complaints will feed into the planned new commissioning arrangements 16. Consortia and the National Commissioning Board should have access to regular and anonymised data returns detailing complaints lodged with commissioned services to inform future commissioning decisions. Data needs to be meaningful and collection processes robust. 17. We believe the patient experience should be simplified so that patients are dealt with fairly. This would include having a named person with overall responsibility for each complaint.
Litigation The cost of litigation against the NHS 18. MPS provides comprehensive professional indemnity to GPs, dental practitioners, and doctors working in private capacity in secondary care. The NHS Litigation Authority (NHSLA) provides indemnity to clinicians working for the NHS in secondary care, via their employing hospital trust. 19. MPS indemnity is provided on an occurrence basis. As long as the clinician was a member at the time of the incident, help can be requested at any time in the future when needed. 20. The number of claims made against GP members in England has increased by 39% over the last three years. During the same period the estimated average claim size has increased by 22%. Between 2003 and 2009 MPS settled more than 6,600 medical and dental claims in the UK. 21. MPS has experienced a sharp rise in the size of claims made against clinicians in England and Wales. The highest medical claim settled by MPS to date was over £8 million. The highest UK dental claim settled by MPS was approximately £775,000.
Reasons for the inflation of litigation costs in recent years 22. Four main factors have led to inflated litigation costs: — Increasing claims (social change, encouraged by aggressive advertising by claims management companies). — Increasing legal costs (impact of conditional fees and after the event insurance). — Inflation of damages (general inflation but also impact of higher costs of personal care and additional heads of loss). — Legal and regulatory change, inflating damages (changes in the discount rate, introduction of periodical payments, and indexing periodical payments in line with earnings inflation rather than RPI). 23. Without legislative change, inflation of damages is likely to continue unabated and the question of whether society can afford such levels of compensation will be left unaddressed. 24. The UK courts apply the established principle of tort law compensation, to put the claimant in the position he would have been in but for the wrong done to them; each case is assessed on an individual basis. It is not the responsibility of the courts to consider the fair allocation of limited NHS resources or contrast the care afforded to someone who can establish negligence with that afforded the victim of disease or other accidental misfortune. 25. Claimants are entitled to claim the full extent of their loss, so the high earner will recover their loss of income in full as will the worker on minimum wage. The fact that the high earner may have been able to protect their level of income by permanent health insurance is disregarded. 26. Furthermore, in considering a claim made against the NHS the court does not consider whether care is available freely from the NHS. Instead the Law Reform (Personal Injury) Act 1948 provides that the possibility of avoiding medical expenses by taking advantage of NHS facilities is to be disregarded. Nor is there any requirement that a claimant awarded damages for a particular loss, actually spends their award on meeting such costs. For example, a claimant may recover from the NHS the cost of private care but then take up free NHS care. 27. UK compensation levels for the most severely injured claimants are now amongst the highest in the world. A debate is needed on the levels of compensation that are fair to the injured patient, and to wider society. Choices can be made and tort reforms in other jurisdictions have included: — Thresholds of impairment before claims can be brought, to eliminate low value claims. — Limits on general damages for pain and suffering. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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— Limits on future loss of earnings claims by reference to average earnings. — Setting discount rates at less conservative levels. — Making evidence of collateral payments admissible to reduce damage awards. 28. Another reform would be to exempt claims arising from NHS treatment from the provisions of the Law Reform (Personal Injury) Act 1948.
The impact of conditional fee arrangements on litigation against the NHS 29. MPS considers that there is something wrong with a legal system where lawyers receive more than patients in 72% of claims. 30. The graphs below show damages reaching patients as a percentage of the total cost of the litigation process:
Medical GP England & Wales Damages Reaching Patients as % of Total Paid
100%
75%
50%
25%
0% £500K+ £100K - £500K £10K £100K £0 - £10K
Damages Reaching Patients as % of Total Paid £
Medical GP England & Wales Damages Reaching Patients as % of Total Paid
75%
50%
25%
0% £100K - £500K £10K £100K £0 - £10K
Damages Reaching Patients as % of Total Paid £
31. Appendices A and B set out the proportion of legal costs incurred (in claims against GPs and dental practitioners) as a percentage of the total cost of the litigation process. They also show that claimant costs have increased whilst defence costs have remained at a consistent level. Conditional fee arrangements have driven up claimant’s legal costs to excessive and disproportionate levels. With claimants litigating free of any exposure to personal financial risk, there has been no effective constraint upon claimants’ lawyers’ charges, nor on the time they incur on cases in which damages are recovered. 32. We recognise for complex claims, claimants will require legal assistance. Our concern is not that costs are incurred but that the costs incurred are often disproportionate and place an unreasonable burden on defendants. 33. The drivers of legal costs inflation have been fully explored by Lord Justice Jackson in his recent review of civil litigation costs. MPS welcomes his recommendations, which will provide a fairer and more accessible system of civil justice and increase the proportion of litigation expenditure going to patients rather than lawyers. cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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The effect of litigation on the development of an open reporting and learning culture in the NHS
34. MPS has for many years supported the development of an open reporting and learning culture. We believe this enhances trust between healthcare professionals and patients, helps to prevent mistakes re-occurring and reduces litigation which research suggests is often the product of distrust and poor communication. MPS’s philosophy is to ensure patients who have a well founded claim in negligence receive fair and swift compensation. We have no wish to see fear of litigation obstructing good, open communication about mistakes.
35. MPS works with the NHSLA to encourage giving apologies where due, confirming they do not prejudice any legal process. We provide training in open disclosure and better communication to clinicians. In our publications we promote a learning culture, making use of our claims experience to highlight common mistakes and spread awareness of specific risks.
36. Clinicians have ethical and professional obligations to be open with patients about mistakes. MPS consistently advises members to be open with patients after a mistake however we know many are fearful of the consequences. More should be done to encourage openness, but fear of litigation is not the main issue; disciplinary and regulatory consequences are a greater barrier. The investigation of mistakes needs to focus on preventing future errors rather than attributing blame. There is also a need for mentoring, training and support.
37. There is evidence that pro-active management of adverse events reduces complaints and claims. We advocate a culture of openness through: — Dealing openly and fairly with the patient. — Analysing adverse events to learn from them. — Implementing what’s learned.
38. MPS supports clinicians to do this and in 2010 we ran nearly 100 workshops on managing adverse outcomes.
The Government’s intentions regarding the implementation of the NHS Redress Act 2006
39. MPS supports proposals that enable early identification of adverse incidents and allow claimants to receive compensation, where appropriate, quickly and efficiently. Thorough investigation and fairness for all involved must be central to any new scheme.
40. Shifting the balance away from settling clinical negligence claims purely with financial compensation toward a more comprehensive package of redress for patients including an apology, explanation and remedial treatment, is welcomed. However, the scheme should be fully tested in secondary care before consideration is given to implementation in primary care.
41. In his recent review, Lord Young indicated he would like to explore the possibility of extending the low value Road Traffic Accident (RTA) scheme to all personal injury cases including clinical negligence claims and extending the remit of the scheme from £10,000 to £25,000.
42. Whilst the speed and low costs of the scheme are attractive, we have concerns that it would not be suitable for clinical negligence claims which are usually more complex than road traffic accident claims. We consider that most patients would require the assistance of a lawyer to help them understand the process and to evaluate whether their claim had any merit. Even the most cursory assessment of a claim requires the claimant’s solicitor to seek disclosure of the claimant’s medical records, which may be substantial, and possibly independent expert evidence to establish the extent of the injuries claimed, in order for the claimant’s lawyer to decide whether the case is suitable for inclusion in the scheme.
43. It is important to note that a low value clinical negligence claim can be as complex as a high value claim. We appreciate that a claimant can only establish that he or she has a claim with the assistance of a lawyer and that there must be costs associated with this. Those costs would be considerably more than the RTA scheme currently allows.
The possible benefits of a statutory right to compensation for “treatment injury” from an independent fund, without the need to prove negligence, as required under tort law
44. MPS has closely followed debates around alternatives to the current clinical negligence compensation system. As an international organisation, MPS has experience of no fault schemes in other countries, particularly in New Zealand, which has operated a no fault system since 1972.
45. We understand the appeal of the no fault principle and recognise the moral and social justifications for its introduction. However, experience in other countries shows that no fault schemes do not incentivise improvements in patient safety, result in lower compensation levels, and impose significant costs on the taxpayer. cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
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Encouraging the use of mediation before litigation is initiated
46. Mediation is most useful when the parties have a mutual desire to resolve issues but cannot without assistance break down the barriers to communication and understanding caused by hurt, suspicion or resentment between them.
47. Mediation can help avert litigation if used early and as a true alternative to litigation. Advantages include the ability to deliver outcomes a patient may value more than financial compensation, and which litigation rarely delivers, such as being heard, acknowledged, understood, reconciled, receiving non-financial redress or knowing that risks will be identified, addressed and better managed in future. These are also positive outcomes for healthcare professionals.
48. MPS would welcome more use of mediation as a tool in the complaints process. It should be considered as a step in that process, not just a precursor to litigation. We believe there is great scope for reduced litigation and more satisfying outcomes if more resource is devoted to resolving disputes in their earliest stages. December 2010
APPENDIX A
CLAIMANT AND DEFENCE COSTS AS A PROPORTION OF TOTAL LITIGATION COSTS—GP MEDICAL CLAIMS
Medical GP England & Wales Claims £0 - £10K
70%
60%
50%
40%
30%
20%
10%
0% 2003 2004 2005 2006 2007 2008 - 2009 Year of Settlement
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £ cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
Health Committee: Evidence Ev 181
Medical GP England & Wales Claims £10k - £100k
50%
40%
30%
20%
10%
0% 2003 2004 2005 2006 2007 2008
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £ cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
Ev 182 Health Committee: Evidence
Medical GP England & Wales Claims £100k - £500k
30%
20%
10%
0% 2003 2004 2005 2006 2007 2008 2009
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £
Medical GP England & Wales Claims £500k +
20%
10%
0% 2003 2004 2005 2006 2007 2008 2009 Year of Settlement
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £ cobber Pack: U PL: CWE1 [O] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
Health Committee: Evidence Ev 183
APPENDIX B CLAIMANT AND DEFENCE COSTS AS A PROPORTION OF TOTAL LITIGATION COSTS—DENTAL CLAIMS
Dental England & Wales £0 - £10K
60%
50%
40%
30%
20%
10%
0% 2003 2004 2005 2006 2007 2008 2009 Years of Settlement
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £
Dental England & Wales £10 - £100K
50%
40%
30%
20%
10%
0% 2003 2004 2005 2006 2007 2008 2009 Year of Settlement
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £ cobber Pack: U PL: CWE1 [E] Processed: [28-06-2011 16:32] Job: 011252 Unit: PG05
Ev 184 Health Committee: Evidence
Dental England & Wales £100 - £500K
50%
40%
30%
20%
10%
0% 2003 2004 2005 2006 2007 2008 2009
Claimant Cost Paid £ as % of Total Paid £ Defence costs Paid £ as % of Total Paid £
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