Consultation on Recommendations for No-Fault Compensation in Scotland for Injuries Resulting from Clinical Treatment

Annex B The Review Group's Suggestions for Improvements to Existing Medical Negligence System

An extract from chapter 5 (Item 5.4e) of the Review Group's¹⁸ report showing

"potential improvements to the existing system, based on the problems which were identified in chapter 2.

(ii) Length of time: many reparation claims can take months, if not years, between initial investigation and final resolution by way of judgement or settlement. This is one of the major failings of the current system, yet this is an area where reform could be made and could lead to efficiency savings. One of the most striking features of the existing Scottish system is that, in stark contrast to England, and indeed stark contrast to other types of claims even in Scotland (such as personal injury claims or non-medical professional negligence claims), there is no framework which regulates how potential claims should be made, processed or resolved. (It should be noted however that with brain injuries at birth, it will not be known for many years, the extent of the residual developmental deficits which may arise with such patients.)

(iii) The main legal time limit is that court proceedings must be commenced within 3 years of the date of the negligence happening or coming to light, or in cases involving children, by the child's 19^th birthday. While Court procedures have been reformed (and further reforms will follow as a result of Lord Gill's Scottish Civil Court Courts Review), these reforms to Court procedure do not deal with the vast majority of claims that are made and resolved without the need for litigation and within the three year period.

(iv) While England has had a pre-action protocol for a number of years, Scotland has been slower to follow suit. A voluntary pre-action protocol was introduced on 1 January 2006 in respect of personal injury cases and a voluntary pre-action protocol in professional negligence (non-medical) cases is also now in place in Scotland. Unlike in England and Wales, there is no statutory basis for these pre-action protocols. They are, however, widely used and followed in other areas of law in Scotland.

(v) Delay in disclosure of information: parties frequently do not 'show their hand' until the parties are well advanced into the adversarial process.

(vi) Those representing clinicians complain of not being given sufficient notice of the factual allegations by those representing the patient as to exactly what is being alleged so that a proper investigation can be carried out. Those representing the patient complain of not being given information regarding internal Critical Investigation Reports and not being able to obtain access to the medical practitioner or colleagues to obtain a factual statement as to what happened. This can lead to a patient's case being dependent on the contents of what happens to be in the medical records, whereas there may be other relevant evidence not known to the patient or the patient's representative. This information sometimes is not disclosed /shared/ reciprocated until matters are well advanced.

(vii) At present, the quality of internal Critical Incident Reports varies from operational unit to operational unit and whether those reports are disclosed to the patient also varies from hospital to hospital. Consistent disclosure of such reports at an early stage so that material and relevant facts are identified would reduce the identified delays.

(viii) Delay in focussing the issues: crucial issues in the dispute frequently do not become focussed until late into the investigation. Problems can arise in practice because of the mobility of medical personnel who can frequently rotate from one job to another as part of a natural career progression. Imposing an obligation on health staff to co-operate with previous employers would enable potential claims relating to them to be dealt with more swiftly.

(ix) A problem can frequently be encountered in terms of the provision of reports by independent medical experts. Experts, who it should be noted are entirely voluntary, if they are to accept instructions could be required to agree to provide a report within a certain period of time. (This can bring its own problems as the pool of available experts in a number of specialities, is small). Early identification of all relevant issues and disclosure of those issues would reduce the likelihood of delays and would enable detailed information to be provided by clinicians while events are still comparatively fresh in their minds, enabling earlier exploration of issues with a view to resolution before parties become entrenched in a long running adversarial process.

(x) Uncertainty of outcome: parties sometimes have no idea as to the likely outcome until the adversarial process is well advanced. No system is perfect in terms of certainty, but the stress associated with this could be reduced by much swifter negotiation and resolution through an agreed set of procedures, particularly if those procedures are designed to reduce the need for parties to proceed to or threaten litigation.

(xi) Perception of lack of openness: there is a perception by many claimants that there has been a lack of openness by clinicians or those representing clinicians. It is the perception of some clinicians and representatives that clinicians will apologise for an obvious error, but the reason that an apology might not be made is that the clinician might only know there has been negligence once an opinion is obtained from an independent expert as to whether the treatment in question was negligent or not.

(xii) From the perspective of those representing patients there is a perceived reluctance on the part of clinicians to acknowledge error. It may also be that while some clinicians are prepared to tell a patient about an error, with or without an apology, patients' representatives are clear that a significant number do not. Further, even of those clinicians who may be prepared to advise a patient of an error, not all will agree on what is an obvious error and so clinicians will have 'variable thresholds' for disclosure. From a professional standpoint, the GMC makes the position clear.

(xiii) Section 30 of the GMC Guidance of 'Good Medical Practice' states that:

"if 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."

(xiv) Section 31 continues

"Patients who complain about the care or treatment they have received have a right to expect a prompt, open, constructive and honest response including an explanation and, if appropriate, an apology. You must not allow a patient's complaint to affect adversely the care or treatment you provide or arrange."

(xv) That the patient should have a right to know in England and Wales is reflected at page 25 of the Coalition Government Programme published on 20 May 2010 which states 'we will require hospitals to be open about mistakes and always tell patients if something has gone wrong'. Increased disclosure and sharing of Critical Incident Investigation reports would also reinforce this ethos of openness.

(xvi) Access to Justice: there is a significant shortage of solicitors and advisors who have the expertise to deal with medical negligence cases in Scotland. As a result, many claimants can receive poor or inadequate advice, with a low number of cases leading to 'satisfaction'. This can also lead to 'Inequality of arms' - clinicians will generally be represented by specialist lawyers, but patients frequently are not.

(xvii) This is a major issue in Scotland, where there are only 6 accredited claimant clinical negligence specialists. A significant factor is the lack of resourcing and training for lawyers and representatives in this field.

(xviii) What should be a comprehensive network of solicitors in private practice throughout Scotland is, in fact, patchy. Consideration needs to be given as to how to improve and increase access to justice. In addition, it should be considered whether a review of legal aid rates and the fee structure would attract practitioners prepared to deal with this type of work. This would also help to redress the current imbalance between clinicians generally having expert representation and patients frequently being without it.

(xix) Expenses: many patients who have suffered injury feel unable to take matters forward because of the expense of instructing a solicitor, or an inability to recover all expenses even if successful. At present, there are four main avenues of potential funding open to a client, namely:

legal aid/legal advice and assistance through the Scottish Legal Aid Board, assuming the client is financially eligible;

the client pays solicitor fee on a private basis;

'before the event' insurance, typically a DAS type household insurance covering legal expenses (this is comparatively unusual). This insurance covers the legal costs involved in pursuing or defending a claim. Legal costs include the appointment of solicitors, barristers and expert witnesses; or

'after the event insurance' frequently in conjunction with a 'no win no fee' speculative agreement. It is, however, unusual for a solicitor to take on a clinical negligence case on a speculative basis because of the highly risky nature of the case and the considerable expense of the insurance premium which can run into thousands of pounds. In addition, even if the client is ultimately successful in the claim, the client cannot recover the insurance premium. In England, the 'after the event' insurance premium can be recovered as part of the legal costs if the party is successful. We noted, however, that proposals, from Lord Justice Jackson's review of civil litigation costs strongly recommend that recovery of after the event insurance premiums be abolished in England.

(xx) Although changes have been made to the availability of legal aid to take a case to Court, these changes do not affect the vast majority of potential claimants who seek to resolve their case without litigation and who are dependent on legal advice and assistance, which has more limited eligibility criteria than full legal aid.

(xxi) Disproportionality of legal expenses: the legal expense of investigating and pursuing the claim can be disproportionate to the value of the claim. At present, similar steps can be taken by both claimants and defenders regardless of the value of the claim. A complex report on Hunter v Hanley negligence may require to be obtained from an expert irrespective of the value of the case. Similarly, reports on causation can be just as expensive for low value claims as for high value claims. It is, of course, possible that the parallel existence of a no-fault scheme might encourage claimants to use this when the value of their claim is low and, if so, this would be a direct benefit."