PUTTING THINGS RIGHT GWEITHIO I WELLA Legal Advice Group Final Report October 2008 Background The Legal Advice Working Group has been set up as part of the Welsh Assembly s Putting Things Right Project and its overall remit is to; Advise on the most appropriate provision of independent legal advice that is without charge to the patients Advise on the most appropriate stages for the provision of such advice. Advise regarding financial limits within which new arrangements would operate. The Terms of Reference and membership of the group is attached at Appendix 1. Purpose This final report seeks to inform the Putting Things Right Project Board on the Working groups final recommendations. The recommendations will serve to inform the drafting of regulations which will go out to consultation in early 2009. The issues addressed by the group reflect both the requirements of the Redress Measure and those of the wider project work. The following questions have been raised and recommendations made. 1. Provision of Legal advice as per s7 Legal advice is necessary as it will provide the patients and NHS Trusts with; - Independent advice - Quality assurance regarding the investigation - Quality assurance regarding the proposed settlement It was agreed that advocacy as proposed by the Community Health Councils, was not a substitute for specialist legal advice, it was envisaged that there would be 1
situations where both parties are involved in assisting the patient. The patient should not be precluded from using one where the other is involved. Who should provide such advice? The group reviewed the current providers of legal advice to include Citizens Advice Bureaux, Specialist clinical negligence solicitors (those who are recognised members of either AvMA or Law Society Clinical Negligence panel), Non specialist solicitors, legal executives and members of the Civil Bar. It was felt not to be appropriate to use Barristers to consider the information collated during the investigation as there are few specialist clinical negligence Barristers in Wales; furthermore, it is not part of their normal working practice to engage in direct correspondence with parties or witnesses. It was not considered appropriate to use the Citizens Advice Bureaux for legal advice, as there is no certainty of expertise within the organisation. It was concluded that specialist solicitors were the most appropriate to ensure consistency and quality assurance of advice provision. Such solicitors have been quality assured using nationally accepted standards to allow their inclusion on the Clinical negligence expert registers. While there was no agreement that it was necessary, it was generally felt to be preferable for the solicitors to work within firms based in Wales. If firms outside Wales were offering such advice it would be the responsibility of the solicitor to travel to the client in order to make the advice equally accessible to all. It was concluded that such advice would allow for; - Analysis and understanding of the legal issues and tests, which are preserved within the NHS Redress Measure - Appropriate knowledge of relevant issues and quantification of damages and future liabilities - Avoidance of future litigation in many cases and recognition of when formal proceedings would be more appropriate - Avoidance of under settlement of a patient s claim - Consideration of the financial implications of long-term clinical sequelae on the patient s future. - Quality assurance of advice provision - Consideration of non monetary resolutions Recommendation 1 Legal advice should be provided by solicitors who have been recognised through inclusion on one of two nationally recognised panels (The Law Society and Action against Medical Accidents AvMA) to be experts in the field of clinical negligence. 2. Points at which legal advice should be provided s7 (2) (a) (b) (c) 2
It is recommended that legal advice should be made available to the patient at the following stages 1. At conclusion of investigation undertaken by Trust at which point; a) Liability may be admitted by the Trust and an offer of redress made. (NB this offer may include other elements such as detailed explanation of events, appropriate apology, information regarding package of care as well as financial compensation.) b) Liability may be denied by the Trust and no offer of any redress package is made. 2. Further to the Trust denying liability but recognising that further investigation possibly through the instruction of a medical expert is required. Such instruction will be undertaken jointly between the Trust and the patients legal adviser. This in itself may lead to the Trust choosing to make an offer of settlement, or taking a final decision to conclude the process 3. Further to 2 and also in the circumstances of the Trust offering to make an ex gratia offer without making any admissions of liability, where offer of financial compensation and /or package of care is made. 4. If the patient is a child and representation is required at an Infant Settlement Approval hearing for the acceptance of an offer made. In this situation, it is highly likely that Counsel will need to be instructed for such an application. The identification and instruction of suitable counsel will be the responsibility of the Legal adviser involved (NB These are the points at which the group considered that legal advice should be offered Patients may choose to access legal advice at all or none of these stages. The points of access should be kept under review once the new arrangements are implemented The points of availability listed above reflect the provisions of the NHS measure whilst recognising that different patients will have different needs in relation to frequency and level of advice. Recommendation 2 The group supports the stages as identified by the NHS Redress Measure as being appropriate stages for the provision of legal advice. It does however recognise that the arrangements may highlight, as they are put into place, other points at which such advice may benefit the complainant and/or Trust. 3. The cost of such advice Much work has been undertaken in this area and the recommendation made recognises the need for consistently high quality advice. It was felt important that the costing structure recommended, allowed for the forecasting of final potential costs in each case. 3
As the working group were of the consensus that legal advice should be provided by specialist clinical negligence solicitors, the views of this group were canvassed through a meeting and a questionnaire. It was agreed that the remuneration for such advice has to be profitable whilst still being proportionate. Recommendation 3 A composite framework of financial reimbursement for the provision of such advice is felt to be the most appropriate. The framework agreed is as follows; An hourly rate of 175 exc VAT is charged for Legal advisers time but capped at an upper limit for the first part of the process and thereafter a fixed fee for each step 1) Capped hourly payment to be made for the review of outcome of Trust investigation and provision of advice to patient. 2) If not concluded at 1) then a fixed fee would be payable for the investigation into liability issues allowing for 2 expert reports, with an additional cost for each agreed extra expert of 350* where agreed by both the Trust and patient legal adviser 3) If required following 2) a further fixed fee would be payable for investigation of the appropriate value of the claim allowing for 2 expert reports, with an additional cost for each agreed expert of 350* where agreed by both the trust and patients legal adviser. 4) When there is a need for representation at an Infant Settlement approval hearing, provision to be made for Court fee and fixed counsels fee of 450 exc VAT which may or may not be required. Solicitors to be paid an hourly rate capped at 5 hours work. Those firms engaged in this work will be subject to audit during their involvement in the scheme; hourly rates and fixed fees to be reviewed on a regular basis. 4
An indicative cost for each stage is proposed as follows: Minimum Maximum 1. 175* 1500* 2. 0 1500* up to 2 experts (+ 350* per expert if more than 2 experts required and agreed) 3. 0 1500* up to 2 experts (+350* per expert if more than 2 experts required and agreed) 4. 175* + court fee 1325* + court fee Court fee, fixed by Court Counsels fee 450* 875* capped solicitors fees * NB All figures are exclusive of VAT 4. Financial Limits as per s2 (6) A considerable amount of discussion has taken place surrounding this question. The group are anxious that any recommendations made would not limit the Trusts ability to settle matters where they wished and felt able to do so. Concerns were expressed however, that Trusts should recognise the limitations of the arrangements in dealing with matters of significant complexity or high value in which the current adversarial litigation system may better serve the patient. The group did not feel any need, nor did they feel it would be helpful, to specify an upper financial limit surrounding other parts of the compensation package. Recommendation 4 Where liability remains in dispute at the end of the investigation process an upper limit of 20K will represent a global sum for potential settlement Where the Trust has admitted breach of duty an upper limit of 20K will relate only to pain, suffering and loss of amenity. 5. Guidelines for quantification of claims The group reviewed the need for staff dealing with patient concerns and incidents to be supported in the new arrangements. There will be an expectation for staff to become more proactive in the management of patient concerns where the issue of liability is a live one. This will apply both to the investigation of such events, and also 5
in the early settlement of claims where the investigation report has concluded that the Trust is liable for the damage sustained by the patient. There is a need for a consistent approach to quantifying such matters ensuring that regardless of which Trust across Wales is involved the patient will be compensated consistently. As such it is recommended that a tariff be used. A number of tariffs were considered and the group felt the Judicial Studies Board (JSB) guidelines to be the most appropriate. A guidance document for the claims managers using the JSB will be necessary and the group have undertaken to prepare this. The (JSB) Guidelines provide a tariff for injuries, which is widely used and accepted across the legal community. It is collated and updated regularly using court cases as precedents. It will be appropriate to compile an additional set of guidelines to assist in the quantification of lower value cases and those situations not included within the JSB. The responsibility for the preparation of the additional guidelines will lie with WAG. This will need to be updated with the same frequency as the JSB s, The responsibility for updating the additional guidelines has been accepted by Welsh Health Legal Services (WHLS) but ratification by WAG would be required. Recommendation 5 A tariff system is necessary to assist in the quantification of claims. It will provide a reference system, which will ensure consistent quantification of matters across Wales. The Judicial Studies Board guidelines would be the most appropriate tariff. A supplementary guidance regarding the use and interpretation of JSB will be prepared. Supplementary guidelines covering events not contained within the Judicial Studies Board guidelines will be necessary. The responsibility for the preparation of the guidelines will lie with WAG, the responsibility for updating the guidelines with the same frequency as JSB will lie with WHLS. 6. Medical Experts In the course of the investigation process it is often necessary to obtain an independent medical opinion on care received by patients. Presently there is great variation in the sourcing, the payment and the timescales relating to these reports. Further to consultation with claims managers and legal advisers it was felt that a national register of medical experts to be drawn upon by both claims managers and legal advisers would be appropriate. The development of such a register will be the responsibility of WAG who will also retain responsibility for maintaining and updating the register. 6
Recommendation 6 A medical expert register would be appropriate as a central reference point to be used in the context of the arrangements, for the identification of clinicians willing and appropriate to provide an opinion on care received by patients. Criteria for entry on the register will be agreed with the medical, nursing and legal community Terms and conditions of instruction will be agreed prior to an individual s inclusion on the register. The responsibility for the maintenance of the register will lie with WAG 7. The use of mediation/facilitation The group recognised the significant value in some cases of employing mediation as a tool to achieve resolution in a dispute. Whilst accepting that mediators with a special interest in clinical negligence would not always be necessary, the value of mediation was felt to be a very useful tool to be employed in some circumstances. It was felt that in some circumstances the use of a mediator or facilitator, whichever was appropriate to the situation would not only achieve an earlier resolution of the issues but achieve cost savings in the long term. 8. Disclosure of Investigation reports The group felt strongly that comment was received from them in relation to the disclosure of Investigation reports. It was felt that the presumption should in all circumstances be for full and open disclosure to the patient of investigation reports and related documents. The only situations where consideration should be given to withholding the report are those circumstances that meet the requirements for the exemptions to access detailed in the Data Protection Act 1998 subsequently modified by The Data.Protection (Subject Access Modification) (Health) Order 1999 s7. These being where the disclosure of the document is; Likely to cause serious harm to mental health or condition of the individual concerned Likely to cause serious harm to the mental health or condition or another person Such a decision should be made by a Health professional, this being determined as the most recently responsible for the patients clinical care or the health professional with necessary expertise and qualifications. 7
Appendix 1 PUTTING THINGS RIGHT GWEITHIO I WELLA LEGAL ADVICE GROUP Terms of Reference The group will consider the issues outlined below with reference to the Measure and the wider project Putting Things Right The group will be responsible for reporting recommendations back to the Project Board of Putting Things Right Communication between members will be in the form of group meetings and e- mail communication There will be provision to invite individuals in to provide advice on specific issues The group will undertake the work within six months of commencement WAG will provide administrative support to the group. The group will undertake to provide an interim report to the Board by 14 th December 2007-08-03 8
Issues to be addressed Options available to offer legal advice, free of charge to the patient Appropriate stages for provision of advice The level of skill necessary to provide such advice The need for and means by which such advice be seen as independent and trustworthy by all parties The need for such advice to be accessible Managing the need for the process to be acceptable to those providing the advice The cost implications for the provision of such advice Financial limits for compensation under the arrangements Appropriate reference for that limit e.g. total payment out, payment in respect of pain and suffering Potential tariff system for quantifying damages Status of documentation prepared during the process, i.e. disclosability etc Obtaining medical expert reports, including: Identifying experts Instructing experts Cost of obtaining reports Suspension of the limitation period, point at which the clock stops and starts running, time limits for accepting offers, etc This list is not exhaustive and the group, on meeting, may identify other issues that need discussion. GROUP MEMBERSHIP Anne Louise Ferguson (chair) David Rudd Yvonne Agnew Trish Gaskell Donna Few Alison Gerrard Kate Montague Welsh Health Legal Services Walker Smith and Way Solicitors Leo Abse & Cohen Solicitors Welsh Risk Pool Claims manager, North Glamorgan NHS Trust Finance Director, Monmouthshire LHB Welsh Assembly Government It is open to the group to invite individuals into the group to advise on certain issues. This will be determined by the group members. Relevant Clauses within the Redress Measure Clause 2 Redress under the arrangements 2(4) (a) make provision for the compensation that may be offered to take the form of entry into a contract to provide care or treatment or of financial compensation, or both, 2(5) If the provisions provide for financial compensation to be offered, they may, in particular- 9
(a) make provision about the matters in respect of which financial compensation may be offered. (b) make provision with respect to the assessment of the amount of any financial compensation 2(6) The regulations which provide for financial compensation to be offered- (a) may specify an upper limit on the amount of financial compensation that may be included in an offer of redress made in accordance with the regulations; (b) must, if they do not specify a limit under paragraph (a), specify an upper limit on the amount of financial compensation that may be included in such an offer in respect of pain and suffering; (c) may not specify any other limit on what may be included in such an offer by way of financial compensation Clause 6 Suspension of Limitation period (1) The regulations must make provision for the period during which a liability is the subject of an application for redress under the regulations to be disregarded for the purposes of calculating whether any relevant limitation period has expired or not. (2) The reference in subsection (1) to any relevant limitation period is to any period of time for the bringing of civil proceedings in respect of the liability which is prescribed by or under the Limitation Act 1980(c.58) or any other enactment (3) The regulations may define for the purposes of provision in accordance with subsection (1) when liability is the subject of an application for redress under the regulations. Clause 7 Legal Advice, etc. (1) Subject to subsections (2) and (4), the regulations may make such provisions as the welsh Ministers think fit- (a) for the provision of legal advice without charge to individuals seeking redress under the regulations (b) for the provision in connection with an application for redress under the regulations of other services, including the services of medical experts. (2) The regulations must make such provision, as the Welsh Ministers consider appropriate in order to secure that individuals to whom an offer of redress under the regulations may be made have access to legal advice without charge in relation to (a) any offer that is made (b) any refusal to make such an offer; and (c) any settlement agreement 10
(3) Provision under subsection (1) (a) or (2) about who may provide the legal advice may operate by reference to whether a potential provider is included in a list prepared by a specified person or body. (4) If the regulations make provision for the provision for the services of medical experts, they must also provide for such experts to be instructed jointly by the body or person operating the redress 11