Written evidence submitted by Ward Hadaway LLP (NLR0045)
This submission is made on behalf of Ward Hadaway LLP in response to the above call for evidence. Ward Hadaway LLP have been acting for the Health Services historically for over 100 years and have worked with NHS Resolution for over 20 years as a member of their Legal Panel assisting them with their portfolio including claims, patient safety and learning. We also act for over 100 individual NHS organisations providing support and promoting patient safety through learning. We are submitting evidence in support of this call for evidence as we feel our practice gives us valuable and relevant insight into NHS litigation.
Changes to the way compensation is awarded linking damages to the promotion of learning and avoidance of repeated problems moves us towards a punitive system of litigation which may indeed encourage rather than deter litigation, fostering a "blame and punishment" attitude.
Instead the promotion of leaning is perhaps better served in terms of the approach to liability. Where it is considered that learning has not been embedded, leading to continued harm, the arena of "never events" could be expanded to impose an acceptance of liability. As learning happens and is shared, and where there are clear mechanisms/actions to avoid or minimise the risk of the same recurring, if a Trust is unable to demonstrate that the same has been embedded then liability can be accepted quickly and cost effectively without the need for lengthy, expensive investigations by both parties. This would ensure the NHS recognises and accepts the importance of learning from claims and, that leaning is shared nationally, with guidance and recommendations to improve patient safety. This would also allow the NHS to consider and embed learning from external organisations too and expand on the good work from schemes such as GIRFT and other patient safety initiatives.
It is imperative that a distinction is drawn between meritorious and unmeritorious claims at the earliest possible stage.
Claimant Solicitors should be encouraged to serve a Letter of Notification so that prompt investigations can commence. Even where a request for medical records has been made, Members should be asked to cross reference to any internal investigation conducted. If the Member's own investigation has revealed a litigation risk then expert evidence (where necessary) can be sought at the earliest opportunity and, if appropriate, admissions can be made before the Letter of Claim or even Letter of Notification is received. Settlement offers or interim payments can then be made. Early interim payments may assist in reducing harm to the Claimant and may enable a package of care or rehabilitation to be commenced, which may also reduce overall damages.
We have found global resolution meetings to be extremely effective. Such meetings can be arranged with Claimant firms and a number of cases can be discussed and settlement offers can be made. We have found that we have been able to resolve the majority of claims discussed in this way. It promotes a joint resolve to reach agreement. Even where settlement is not been achieved there has been an opportunity to progress matters. An agreement could be reached with the major players in the sector to hold regular quarterly meetings.
We consider that there should be costs penalties where a Letter of Claim is not served and Claimant firms progress straight to litigation. The CPR should be modified so that where there has been no Letter of Claim, there is a 4 month stay upon service of proceedings to enable investigations to be conducted.
Consideration should be given to mandating early exchange of expert evidence in relation to liability where there has been a denial in a Letter of Response. This would assist in securing discontinuance in unmeritorious claims, or cause the Defendant to make an admission or proceed to settlement.
The impact of Coronavirus upon litigation has shown that Claimant and Defendant solicitors can work together for the benefit of all parties. Moving forward this approach should continue and be extended so as to make the whole claims process move swiftly and achieve resolution as soon as possible.
As far as possible, collaborative working should explore alternative ways to resolve disputes outside the litigation process. Lengthy disputes which proceed through the Court system only serve to increase costs and in some instances increase damages awarded.
As soon as a clinician is aware that circumstances have arisen which might give rise to a claim, this should be reported to the Trust Legal Department. A meeting should then be arranged with the patient or the family of the Deceased and the clinicians involved to enable concerns to be raised and questions asked. Some potential claims may be prevented at this stage by the offer of an apology.
This will also promote collaborative in house working to consider the findings of complaints and internal investigations and their impact on likely claims, to enable early consideration and resolution.
If a patient or the family of the Deceased instructs a legal representative to proceed with a claim on his/her behalf, early ADR or a meeting to discuss how best the claim might be resolved should be considered. The possibility of jointly instructed experts should be explored. Many reputable experts are instructed by both Claimant's and Defendants.
Within the collaborative framework, admissions of liability wherever appropriate, should be made as soon as possible. This will allow the parties to focus on exploring the value of the claim. Quantum investigations are generally less confrontational than liability investigations and parties should be more willing to engage experts on a joint basis when investigating quantum.
In order to avoid the protracted Court process, mediation should be explored wherever possible.
The Early Notification Scheme (ENS) as it applies currently was introduced recognising the severe delay which often occurred in claims being notified arising from the birth of a child. This meant that detailed investigation did not take place contemporaneously which diminished the opportunity to learn lessons. The ENS scheme has therefore brought twin benefits.
1. Earlier and timeous investigation of such claims.
2. Explanations and potentially compensation being made available to families who badly need it due to events surrounding the birth of their child.
That scheme is continuing to be refined and improved, bringing benefits in both financial and human terms leading as it does to a simplification of process, reducing the adversarial approach and encouraging early involvement of families in the process.
ENS is a voluntary scheme and families are not required to follow this process if they do not wish to, although our experience is that the vast majority of families are happy to be involved. We strongly endorse this voluntary approach as it is important to win hearts and minds in this situation rather than choosing a route of compulsion. There is no question that early learning is a clear benefit of the scheme and we can understand the interest in exploring whether it could be extended further.
From our perspective the scheme itself is still subject to improvement and refinement to ensure as focussed an approach as possible and our view would be that this should continue for a while yet before considering whether and in what circumstances it should be extended.
It is important to acknowledge that the major delays in investigating clinical negligence claims arose in the context of child birth as families often did not wish to consider pursuing a route of compensation until it was clear that their child had serious difficulties which would be lifelong. These same time lags are not so pronounced in most other areas of clinical negligence claims and therefore in our view the benefits would be more limited.
Our own view is that it would be preferable if further resource were allocated to a better managed complaints process at local level which was more effective at identifying deficiencies in practice and sharing learning across the service.
The issue of costs has been a longstanding one in clinical negligence claims, with concerns that the costs claimed at the conclusion on cases are not proportionate to the issues in dispute in relation to liability and/or quantum. However, it also has to be recognised that relatively low value claims can be complex despite the likely level of compensation.
In order to achieve fairness for both parties in relation to costs issues we suggest that it would be reasonable to extend the concept of fixed costs to cases with a value of up to at least £50,000.
The portal type system which presently applies to personal injury claims could equally apply to clinical negligence claims. Attempts could be made to agree protocols for claims with a value of £50,000 or less. Procedures could be streamlined so that there is collaborative working between the parties in the context of time limits to investigate such matters. For example, there could be a presumption for cases within the portal to agree joint instruction of expert evidence, for both liability and quantum.
For cases within this cohort, capped sums for pre- issue and post issue costs could be agreed. Whilst this could be considered based on the percentage of the damages award recovered, fixed costs tariffs for cases within different value brackets up to £50,000 would make this less contentious and promote speedier settlement.
We consider it would be appropriate to exclude Fatal Accidents Claims and stillbirth claims which, though often low value in terms of damages awards nevertheless require sensitive handling and often involve complex issues which result in additional costs being incurred notwithstanding the relatively low value damages award.
To what extent does the adversarial nature of the current clinical negligence system create a "blame culture" which affects medical advice and decision making?
We are aware that in some instances, a potential Claimant will seek legal advice as a last resort. Some have been through the complaint procedure which might have been fraught with delay and which sometimes results in a bland, general letter in response. Other potential Claimants are unaware that an internal investigation has been carried out into their care. On occasion, it is only through the Claimant's solicitor requesting a copy of the investigation report that the Claimant became aware of its existence. Sometimes there is a delay in providing reports either because they have not been signed off or not yet finalised.
All of the above only serve to encourage a patient to litigate as a means of dealing with their concerns. Once a claim is litigated, this can unintentionally encourage a blame culture to evolve. Litigation can be perceived as an "Us and Them" situation. Claimants are sometimes convinced that a particular clinician is individually responsible for causing harm and subsequently delay. Clinicians involved can become more defensive in their response to a request for assistance with a potential claim.
In this situation there is a potential for clinical decisions to be made so as to prevent litigation which may not always be in the best interest of the patient.
We should be encouraging a clinical negligence system which is less adversarial, thus diverting resources away from litigation into treatment.
How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action?
The NHS has a unique advantage over any other healthcare system in the world in terms of its ability to collate and review a complete cohort of poor/unexpected outcomes to be able to maximise learning and prioritise patient safety, due to the centralisation of handling of clinical negligence claims.
As with the coronial service, it is right that any system should consider both the facts of the individual claim/incident, but should also consider what. If any, learning arises from the same and what change is required to reduce the risk of future incidents. The NHS has the unique ability to be an organisation with a memory and to drive improvement in all aspects of patient safety and outcomes on a national level.
The NHS has a stepped approach to learning from claims. The majority are identified contemporaneously through incident reporting, prompting investigation and consideration of root causes and contributory factors to such outcomes. Not all of those incidents become a claim but there is routinely useful learning that arises, though that learning often stays within the individual organisation. There would be value to the NHS as a whole to capture and use the individual organisations learning at this stage as this would be more timeous and therefore more impactful.
If an incident does become a claim, then the learning already identified can be shared more widely. There is also an opportunity to consider whether that review has captured all learning or whether there is any further learning that would impact on patient safety.
Ideally we should be striving to have a clinical negligence system that proactively recognises that learning from incidents can inform the way claims are considered to promote swift resolution where appropriate.
What changes should be made to clinical negligence claims to enable a move away from a blame culture and towards a learning culture in the NHS?
Whilst mediation should not be mandated we consider that the move towards resolution via ADR should be continued. Early mediation enables parties to resolve disputes before positions become entrenched. The participation of clinicians at mediation should be encouraged – hearing an account from the injured party's perspective may assist with reflective practice.
We consider that early exchange of expert evidence could be mandated during the Pre-Action Protocol period. This would assist the healthcare provider in seeing issues from another perspective, which may assist with learning. There may be an earlier recognition of need for altering clinical practice.
Legal practitioners should avoid the use of adversarial language in pre-action protocol correspondence or pleadings. There should also be a greater awareness amongst practitioners that adverse findings in Trust's internal investigations do not necessarily give rise to a breach of duty. The purpose of an investigation is to learn from an adverse incident, not to apportion blame.
Experts should also avoid using inflammatory terms to describe other practitioner's practice which can make clinicians feel blamed. Equally, where an expert considers that there is learning to be imparted, this should be welcomed, provided it is given in a constructive way.
How can the Healthcare Safety Investigation Branch work to improve short term responses to patient safety incidences and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies?
Given the number of patient safety incidents occurring each year in the NHS we see the HSIB role as primarily one of being an exemplar of good practice and an encourager of local practices being improved in order to address these incidents at local level whilst ensuring that learning is shared across the system. The main focus of all investigations into patient safety incidents should be safety and learning within the service and a number of concepts have been introduced, and are gaining traction in our view, in an effort to improve matters. This includes the notion of saying sorry, of encouraging a blame free environment and reducing the adversarial nature of complaints and claims against the NHS by better co-operative working. In our view the situation is improving generally in this regard. There is no doubt that local learning is key but resource issues often lead to unacceptably long time lags in matters being resolved and there is no avoiding the fact in our view that this is primarily a resource issue.
What legislative changes would be required to support these changes?
Any legislative reform should focus on collaboration and partnership working at local levels, with a health and care system based on integration.
Whilst it may at first sight appear to be radical, legislative changes could be considered in relation to implementing schemes where accommodation could be purchased/adapted within communities to meet an individual's reasonable needs in appropriate cases where adapted housing is required. This would ensure that injured individuals reasonable needs are met during their lifetime and negate an inheritance windfall, allowing funds to be diverted back to NHS care. This concept could also be extended to future care and therapies which is a major financial element of damages paid out. This approach would potentially result in significant costs savings as compared to the current litigious approach which is often adopted in high value claims in relation to issues concerning accommodation and future care. With a combined ministerial department encompassing both Heath and Social Care, there is an opportunity to adopt a more integrated approach to supporting those patients with ongoing care needs, whether that is as a consequence of a negligent act or not, which would avoid issues of double recovery and windfall benefits and create a more just and equitable system for all regardless of any perceived blame. We would also like to see Section 2 (4) of the Law Reform (Personal Injuries) Act 1948 repealed which would at a stroke reduce the bill to the exchequer caused by the utilisation of non NHS support when support is available through the NHS
Oct 2021
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