Appendix 3 CLINICAL DISPUTES FORUM Litigation and Complaints an integrated system? Consultation paper September 2001 A proposal by the Clinical Disputes Forum for the improved resolution of complaints and small clinical negligence claims Introduction 1. The essence of this proposal is the inclusion in the complaints procedure of the right of access to a tribunal considering the complaint of a patient not only to deal with the complaint but also to award a limited amount of compensation. 1.1 In submitting this proposal for consultation the CDF was mindful of a number of issues that are not easily capable of resolution. The paper is not submitted on the basis that all the answers have been found but that answers are being sought. We set out below the case for a more integrated system of complaints and compensation that could deal with all patients complaints in a simple and reasonably speedy way. At the same time the system must be fair to healthcare providers. This paper seeks to satisfy that need. 1.2. Overarching the detail of the new system is the question whether the proposal might be in breach of the European Convention on Human Rights and the Human Rights Act especially Article 6(1) - the right to a fair trial before an independent and impartial tribunal. This requires Opportunities to present your case in full to the body deciding the dispute A public hearing An independent tribunal A reasoned decision Access to the courts to resolve most civil disputes if they are not resolved in another way 1.3 There are two main areas where the above could cause difficulties. The first refers to the question of the Bolam test, which we are proposing, should not be followed to the letter in the new system. If the test applied appears to be something less rigorous than Bolam would that offend the Act on the basis that the defendant may be deprived of a defence in law? 1.4 The second relates to our proposal that if the complainant accepts any compensation awarded by the tribunal she waives the right to seek further compensation in the courts. That could amount to a deprivation of her right to a fair hearing in the courts unless she took legal advice in advance and opted out of the court process on a truly informed basis. 1.5 This is a fundamental issue. Other issues appear within the document and some are raised specifically in the questions at the end. Consultees are nevertheless urged to raise any issues that may be of concern. Why a more integrated system is desirable The problems with the present system 2. The NHS currently treats complaints, claims, and disciplinary matters concerning staff as completely separate matters. This is out of step with the type of joined up thinking and one stop shop approaches being pursued by government in many other areas. Proj A Apr 02 83
From the patient s perspective. 3.1 If a patient makes a complaint, which may warrant disciplinary action the complaint is effectively put on hold until the investigation into the member of staff s conduct is complete. This can take many months and if no disciplinary action is then taken the patient s sense of grievance often increases significantly because of the delay. 3.2 If a patient makes a complaint but before the investigation is complete the patient explicitly indicates an intention to take legal action (which is not necessarily the same as wanting to make a claim for compensation) the NHSE guidance says that the complaints process has to cease, particularly if the patient has requested an independent review. Some healthcare providers interpret this requirement very narrowly - an approach from a solicitor, a request for medical records with a possible claim in mind, a brief reference to compensation or legal remedy in a letter and the work on the complaint immediately stops. 3.3 But most patients only know, or suspect, at the outset that, from their perspective, something has gone wrong. Usually they want: An opportunity to air their concerns If appropriate, further treatment to resolve the medical problem A full and open explanation of what has happened and why If there has been a mistake or unacceptable service - an apology and assurances that lessons will be learned for the future 3.4 Money/compensation is often only an issue if the other remedies are not provided, or not quickly enough, or the damage to the patient is very serious. 3.5 Most patients have no previous experience of making complaints or claims, have little or no knowledge of the complaints or legal system, or of the cost, stress and difficulty of pursuing a legal claim in particular. 3.6 Many of those who seek advice from a solicitor only do so out of frustration at the NHS body s seeming inability to understand and try to resolve the problem. With less secrecy and more openness fewer patients would choose the legal route. 3.7 Yet the system obliges dissatisfied patients to choose, often artificially and too soon, which route to follow. Pushing patients into litigation which they do not really want makes very little sense from any perspective. But patients need incredible stamina to follow first the complaints procedure, and possibly all three stages of it, and then, if they want or need compensation, to go down the legal route. Not surprisingly some begin to suffer from what the Health Service Commissioner describes as complaints fatigue and simply give up before the obstacle course has been completed. 3.8 Choosing the wrong route can sometimes be disastrous. If the patient threatens legal action in a letter about the complaint and the complaint process is stopped, but later legal advice suggests the prospects of success of a claim are not high, or the costs of litigating are out of proportion to what is in issue, or are beyond the patients means, the patient may be left without a remedy at all, as it may be too late to reopen the complaint. 3.9 Moreover, if the patient s potential damages are low, even if the claim is likely to succeed, it is often not worth their while to litigate in any event, unless the NHS body admits liability quickly, because clinical negligence litigation is inevitably complex and costly and is very difficult to pursue without legal help and usually third party funding of the costs (legal aid or insurance or no win-no fee ) is not available. Proj A Apr 02 84
4. The complaints system has other problems too- cases are not always sufficiently rigorously investigated, there are inconsistencies between health bodies, the patient complainant has no right to require an independent review to be established, research has shown that convenors find it difficult to be truly independent, remedies and outcomes are not always carried through and there is little dissemination of lessons to be learned between health bodies. From the NHS perspective 5. The separate systems for complaints and claims have drawbacks for the NHS too. Two teams of staff are often needed to progress complaints and claims separatelyincreasing the costs. Cases have to be passed from one team to the other if a complaint becomes a claim and reviewed and investigated again from the different perspective. The complaints team often has no remit or budget to offer money to a patient so does not do so even in cases where it is readily apparent that a mistake justifying compensation has been made- the running is left entirely to the patient When frustrated or dissatisfied patients seek legal advice and the claims process is begun, there is a knock-on effect to the healthcare provider in terms of management and staff time and, often, in legal costs. It is extremely difficult to plan and budget for work on claims in particular because it is so uncertain which patients might decide to sue and which complaints will cross over to become claims. Relatively minor complaints may receive much more attention than a serious claim if the patient in the latter case seeks legal advice early-as many NHS bodies continue to adopt a defensive wait for the actual claim approach to litigation because of the time trouble and possible cost of the outcome. A pro -active attitude to resolving patients problems is difficult to achieve when they are not perceived holistically but as a category of problem 6. As a result patients confidence in the NHS ability to deal with and learn from problems is often diminished the complaints /claims systems too often are viewed as bureaucratic hurdles erected for the NHS and not patients benefit. Changes towards an integrated system 7. In the last few years a number of changes have taken place to the complaints and litigation systems, which tend to bring them closer together. The NHS is introducing risk assessment and risk management mainly for improved control of budgets and forward planning but early adverse incident reporting also enables health service providers to adopt a more proactive patient focussed approach to potential complaints and claims Proj A Apr 02 85
Similarly the introduction of clinical governance is encouraging a greater focus on patient care and the development of early warning systems which highlight inadequate practices in advance of complaints or claims The setting up of the CNST and the NHSLA has lead to a more efficient and generally less defensive approach to claims and the earlier settlement of some litigation as well as the development of a more professional approach to claims management in some trusts. The civil justice reforms have helped to encourage litigation to be viewed as a last resort, the introduction of the clinical negligence pre-action protocol is leading to a cards on the table approach in the early stages of claims, and the new Part 36 offers to settle are assisting in earlier settlements. Lord Woolf in his Access to Justice report identified several particular problems with clinical negligence litigation - disparity between costs and damages, delays, pursuit of unmeritorious claims, suspicion between the parties and a frequent lack of cooperation. He recommended: - the introduction of simpler, faster, cost-controlled procedures for low value clinical negligence claims. machinery to enable closer working between the courts and Ombudsmen. the complaints procedure being amended to allow for compensation to be paid in justifiable cases The Legal Services Commission (previously the Legal Aid Board) has introduced a new Funding Code for legally aided litigation. A patient financially eligible for legal investigative help with a potential low value clinical negligence claim (under 10,000) will usually be required to follow the complaints system first as this might provide a satisfactory explanation and /or a remedy, or at least provide sufficient information to establish whether there are grounds for making a claim. The Code provides guidance on the very limited types of circumstance in which the LSC might support work on a claim instead of following the complaints procedure including where the patient has been told that a complaint may not be pursued. Applicants must also justify turning down an offer of mediation by the healthcare provider. The Health Service Commissioner has been given the power to investigate complaints with a clinical element and these now form a substantial part of his work. He also recommends the payment of financial compensation slightly more frequently than hitherto and has said he would like to work with the NHS to take this further. He also supports reform of the NHS complaints procedure to so as to make it easier for financial redress to be awarded when appropriate. Following a review by the Cabinet Office, published in April 2000 the Government is conducting a public consultation regarding the possibility of significant changes in the organisation and work of the public sector Ombudsmen. The Department of Health has conducted a pilot scheme in mediating clinical negligence disputes in which, although only a few cases were mediated, the settlement rate was high and patient satisfaction good. Many of the cases in the pilot were at the pre-action stage. Some healthcare providers now offer conciliation or mediation as part of their internal complaints procedures. The DOH is undertaking an evaluation of the complaints system. Surveys and research have shown that there is much dissatisfaction with the complaints systembecause it is inconsistent, is not always sufficiently rigorous or independent, is not well resourced and outcomes are not always followed through. Both the Public Law Project and the House of Commons Health Select Committee have already recommended major changes to the Independent Review stage to increase the independence and Proj A Apr 02 86
transparency of the process including abolition of the role of convenor, giving the patient enhanced rights to request an independent review and for IRPs to be funded and accountable to the Regional Office rather than the NHS body complained against. The Committee also recommended that ways should be found to simplify and clarify the current complex system and improve the links between the elements and the advice available to patients, that initial investigations of complaints should be much more thorough and should include recommendations for further action when adverse clinical incidents are involved. The Health Select Committee favours complaints systems having the power to pay financial compensation The report of the Chief Medical Officer, An organisation with a memory includes a number of recommendations which deal with both litigation and complaints, in particular that to facilitate fuller and more effective use of information from existing sources of information on adverse health care events: the new analysis and dissemination systems recommended should incorporate information and identified trends from the NHS complaints system, from litigation activity and from other reporting and analysis systems to ensure that maximum cumulative learning is extracted from these resources; Some trusts are beginning to integrate their complaints and claims systems-with one team of staff or manager responsible for both, who is alive to the needs of patients and who has authority to settle complaints and small claims. Best practice by the manager in these progressive trusts can lead to a complainant being invited to turn their complaint into a claim. The trust can then make an offer of compensation with the explanation and apology and possibly suggest the claimant seeks advice from a solicitor before a settlement is agreed. Other trusts have set up committees of three wise senior persons to take decisions on settling small claims 7.1 The time is right, therefore, to look again at whether it is possible to develop a better way for patients and the NHS to investigate and resolving the more serious complaints and lower value claims. The objectives of any new system 8. Any new integrated complaints /claims system must Be simple to understand and operate Be flexible to cope with a wide range of cases and circumstances Have a clear and not unduly prolonged timetable Adopt fair and transparent procedures Not require additional bureaucracy or expense Include clear criteria to enable health service bodies to decide when an unacceptable standard of service had been provided to the patient without adopting an overly legalistic approach Build on the best features of current complaints and claims systems including the preaction protocol Be inquisitorial rather than adversarial Be separate from inquiries into conduct and disciplinary procedures but empower the patient, health body and any independent panel to report concerns about individuals performance to the relevant professional bodies. Provide each patient with a detailed written explanation of what happened and an opportunity to discuss it orally Have clear reporting lines and management responsibility for investigations and local resolution at the first stage Provide an independent and robust second stage Offer innovative non-adversarial ways of settling disputes including mediation Offer patients the opportunity to obtain independent medical and/or legal advice where appropriate to ensure they are not under-compensated Proj A Apr 02 87
Enable health service providers to resolve more complaints/low value claims more quickly and cheaply The Parameters of the System we suggest 9. We would expect a new system to provide a better way of resolving those complaints and claims about clinical care, which would not attract high value damages if they were litigated and where the patient/complainant is not seeking simply a financial remedy. 9.1 We are not at this stage proposing that the procedure should be followed for non - clinical complaints. In the main, the existing complaints system (particularly the local resolution stage) is usually adequate to settle these, although perhaps more healthcare providers could follow the example of the most progressive trusts described in outline above, and more often than now consider and offer time trouble and stress payments for serious maladministration. The Health Service Commissioner has observed that the NHS compares unfavourably in this respect with central and local government. 9.2 We also recognise that if a patient is from the outset clearly seeking compensation only, and is doing so on an informed basis, the proposed new integrated approach might not work in those cases. Those patients could be advised to follow the legal route as now. But there are relatively few where that would apply. 9.3 As now, the issue of any clinician s professional conduct and reputation and any disciplinary proceedings would be an entirely separate matter. But clearly healthcare bodies and the independent second stage tribunals would have the power to recommend that individuals conduct should be further investigated. 9.4 The CDF is aware that there is a strong body of opinion, particularly among health care providers, that compensation should only be payable on the basis of the Bolam test applied in the courts. That test is recognised as a complex one. Lawyers, expert witnesses and judges spend hours trying to work it out and still have difficulty in reaching agreement. To expect a tribunal that is seeking a pragmatic, speedy and fair solution to apply it without the assistance of lawyers would be unworkable. On the other hand healthcare providers will consider that to have any different test could lead to complainants being awarded compensation for pain suffering and loss of amenity (or time and trouble ) when in fact there was a defence to the claim. 9.5 Nevertheless it is essential that a procedure such as the one that is being proposed should avoid an over-legalistic test. The fact is that insofar as the smaller, straightforward cases are concerned, which is where the interface between complaints and compensation will invariably lie, a number of Trusts regularly deal with complaints on the basis we are suggesting. Indeed one of the largest Trusts in the country has reported that in one year, all but 5% of claims against it had been handled in house. This suggests that it is not too difficult to arrive at a solution acceptable to all parties. 9.6 Indeed, it must be recognized that the concept of a responsible body of medical opinion or practice is becoming outdated and is very difficult to apply without extensive consultation with clinicians and lawyers with great experience in the courts. On the other hand, we recognize that payment cannot simply be made because a patient is unhappy about treatment or the outcome and do not intend significantly to extend the circumstances in which compensation can be awarded. A less legalistic and more patient-friendly test - whether the care of the patient was of an acceptable clinical standard could have advantages from the patient perspective. Proj A Apr 02 88
9.7 This solution is not a weaker test but is simply to ensure that the investigation and resolution of a complaint does not become bogged down in the kind of legal argument that takes place in the courts. The use of the term acceptable clinical standard is simply to give an indication to the tribunal making the decision that compensation is not payable simply because the patient has not achieved the result she expected. 9.8 An analogy can be drawn with the test applied by the General Medical Council in relation to charges of serious professional misconduct. This term is nowhere defined and it is left to the professional conduct committee itself to decide what it amounts to. Whilst this has caused some debate, nevertheless it has not prevented the committee discharging its duties properly and generally to the satisfaction of the medical profession. Where the committee has failed the courts have had no difficulty in dealing with the issue notwithstanding the lack of specific definition. 9.9 If the Bolam test were to be retained then, unless it is applied by the tribunal in the absence of the assistance of lawyers, which might be unreasonable to expect, the first objective of any new procedure, as set out in paragraph 8, that it be simple to understand and operate could not be met. If lawyers did attend, the costs and formality inevitably would increase and patients would be disadvantaged unless the health service provider paid for both sides lawyers. 9.10 An important aim of a new system would also be to improve on the information and explanations given to aggrieved patients. Where the healthcare body obtains medical/clinical advice on the case this should be sent to the patient. 9.11 As with the current complaints system the procedure is not intended to be binding on the patient. If he/she remained dissatisfied with the attempted internal resolution, or the outcome of the second stage review/tribunal, she would not be precluded from issuing proceedings. But the courts undoubtedly would take the prior events into account as they now have the power to do for pre-action conduct in any litigation. It is also relevant that if the outcome were a binding determination Article 6(1) of the Human Rights Act would apply, entitling the patient to a fair and public hearing before an independent and impartial tribunal, a reasoned decision and the right of appeal. 9.12 We think that a cap on any awards under this system including both general and special damages of would be right. We consider that for higher amounts patients and healthcare providers should take legal advice and even where the case can be settled by negotiation or other means this should be in the shadow of the law 9.13 We think that the basis for compensation should be the heads of damage recognised by the courts pain and suffering and loss of amenity, and specific losses. But the health bodies, and tribunals, could have a limited discretion to recommend/pay small sums for time and trouble as is common practice in most Ombudsman complaint systems. 9.14 We are aware that in most dental cases the issue is about the cost of the treatment and complaints are regularly dealt with by providing remedial treatment. The system should be sufficiently flexible to enable dental complaints to be dealt with in this way when appropriate. Proj A Apr 02 89
The potential advantages of an integrated system 10. A speedy effective one stop shop for the individual patient and greater patient satisfaction An end to the situation where the patient can exhaust the complaints system (and herself) and then find she has to start again if she requires compensation Earlier resolution of more cases for the NHS Less resort to the legal system for all Fewer clinical complaints proceeding to the Health Service Commissioner Greater recognition of lessons to be learned for the benefit of other patients - the independent second stage tribunal could disseminate information throughout the health service Less distress for patients and clinicians The resource implications 11. It is not intended that these suggested changes would significantly widen the circumstances when complaints with a clinical element would be merited or accepted for investigation. Potential for internal administrative costs savings with complaints and claims staff working more closely together and fewer cases going through two separate processes Some complaints and claims staff might need additional training Slightly increased expenditure on independent medical and legal advice re settlements but substantially reduced expenditure on more formal legal and expert costs on both sides at later stages Potential for costs savings through the Regional Tribunals we propose over individual locally organised Independent Reviews Cost of a trained complaints adviser in each Community Health Council The structure 12. It is not possible in this paper to set out the precise details of how the new system would work. Many of the requirements for the system are described above, and below we set out the additional essential features that would need to appear in order to meet those requirements. Once the principles and features we propose are accepted we would look to the government to establish a working party to devise the system to achieve these objectives. The features of the Procedure 12.1 The procedure would, as now, comprise two stages, Local Resolution and Independent Review. At local level the grievance would be dealt with by a designated officer who would need to be at an appropriate level and properly trained. 12.2. The key to the procedure is that if compensation is an issue the complainant should always have independent advice at appropriate stages of the procedure. The level of that advice will depend on the size of the claim but in normal circumstances will not need to be given by a practising lawyer. The most obvious bodies to provide advice would be Community Health Councils or whatever replaces them but it would be essential for each such body to have someone properly trained for that purpose. In many cases, however, the patient would need to consult a lawyer. In certain circumstances a lawyer s advice would be paid for by the organisation or person complained against. Proj A Apr 02 90
12.3 It will be the duty of the officer dealing with the grievance to advise the complainant at all appropriate stages to seek independent advice and to indicate where that advice might be obtained. 12.4 Once a complainant has accepted a payment of compensation s/he will not have the right to seek further compensation in the courts Stage 1 13. The designated officer will normally have a meeting with the complainant. 13.1 If it appears that the complainant has an entitlement to compensation then, whether or not the complainant has indicated a wish for compensation, a full explanation and an apology will be made together with an offer of the appropriate compensation. Stage 2 14. Stage 2 would be appropriate if (a) the primary reason for proceeding further is that the explanation is not acceptable and a fuller explanation and apology is required, as well as an assurance as to what steps are to be taken to ensure that such an accident is not repeated in the institution and/or by the clinician complained about, and (b) s/he is satisfied with any compensation offered or the amount sought is not in excess of 10,000. 14.1 The complainant will also be entitled to proceed to stage 2 of the complaints procedure if, notwithstanding that the offer of compensation is acceptable, s/he is not happy with the explanation or other action taken by the Trust or healthcare provider. 14.2 Stage 2 will operate in the same way as the Independent Review operates at present save that: - (a) Each Region will have a panel set up and administered by the Regional Office, which will meet regularly on a quarterly basis to deal with complaints that are referred to it by the Region (b) The composition of the panels would need to be carefully determined in order to ensure that both patients and health care providers regard them as sufficiently independent. In particular there would have to be appropriate lay representation on the panel. (c) The panel would proceed by way of a hearing at which both parties would be entitled to appear. Whilst witnesses could be called and questioned the proceedings would be inquisitorial and informal so that legal representation would not normally be appropriate. (d) The panels would be empowered to award compensation up to a maximum of 10,000. Proj A Apr 02 91
What else might need to be done to implement our proposal? 15. Limited, if any, amendments to primary legislation would be required health bodies have the power now to settle complaints and claims up to 10,000 whilst individual general practitioners and dentists do not require such power Changes to the NHSE Guidance regarding ceasing work on a complaint when the patient may be considering making a claim for compensation A mechanism to suspend the limitation period to bring a claim while the complaint was going through the system. Changes to the way independent reviews/tribunals are set up and managed to resolve complaints with a financial element. Our suggestion that this should be a function of the Regional Office, that Panels would be convened on a regular basis to decide cases en bloc and the nature of Panel membership would mean significant changes for both NHS bodies and the Regional Office. More co-operation between the DOH and the Lord Chancellor s Department on best practice for resolving complaints and claims Arnold Simanowitz/Suzanne Burn January 2001 Circulated for consultation from 12 September 2001 Proj A Apr 02 92