Saturday, June 24, 2006

Redressing the compensation culture

This is a chapter which I wrote for a new book which is now available on amazon called The Future of the NHS edited by Dr Michelle Tempest.

"Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln, Notes for a Law Lecture, 1 July 1850

INTRODUCTION
Figures
Arguments go both ways as to whether this country is in the grip of a co-called ‘compensation culture’ or not. What is clear is that the costs of litigation have risen enormously in recent years. For example, in 1974 the cost of NHS clinical negligence claims was only £1million. By 2003, this had risen to £477 million, an amount equal to the cost of 22,700 extra nurses. However, the cost is nothing like the scale of that in the United States that is almost always the source of reference when raising the issue. In that country, medical litigation costs are estimated to cost £13 billion a year or 0.2% of GDP as opposed to 0.04% of GDP in this country.
Tensions
Whatever the truth of it, no-one likes to see the NHS losing money and resources on legal claims. However, there are not many victims of clinical negligence or malpractice who do not feel the right to be compensated in one form or another. So, too, no-one wants doctors to be free of any accountability whatsoever. On the other hand, nobody wants doctors to feel so threatened by litigation and professional sanction that they will not act if there is the slightest risk.

These are some of the tensions inherent in the system which allows for both compensation for accidents and some degree of risk in medical treatment. Ultimately, it boils down to a balancing act of two issues in particular. First, allowing risk but maintaining safety and second, reducing cost whilst avoiding injustice.

RISK
Compensation culture
A large part of the bemoaning of a compensation culture involves not the overall figures that do not appear to bear out the accusation but instead the extreme cases. Often apocryphal, they range from being burnt by coffee in a restaurant to being injured due to failing to apply the brakes on a toboggan run in an amusement park. Whilst the public rarely get to hear the full stories of such cases they become part of the collective unconscious, something to rail down the pub or in the canteen.

As with many myths, however, there is often a degree of truth and certainly this is borne out by the facts in personal injury generally. In the past thirty years personal injury law has been extended into all sorts of realms never before expected. Part of this has been down to judicial activism and partly due to both national and European legislation. A classic example of how the courts have extended liabilities comes in the area of sport in which we have seen liabilities established in recent years not only against players on the field but even as far as referees and governing bodies. As for legislation, this is most frequently seen in the health and safety at work regulations which were introduced in the 1990s and which place onerous duties on employers in relation to health and safety. This change towards a culture of blame and arguably away from personal responsibility was reflected in the increasing costs of litigation for the NHS.

Legal retreat
The high water mark of such a culture was reached in the courts in the case of Tomlinson v Congleton Borough Council in 2003 in which the House of Lords dismissed a claim for injury caused by diving into a shallow lake on the basis that the risk was obvious. Lord Hutton, for example, stated “it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled.” This was very much seen as a retreat from previous decisions and as sending a message for all litigants in personal injury, which would equally include those claiming for clinical negligence.

The spirit of the judgment in Tomlinson is now being enacted into law in the Compensation Bill currently before Parliament. In particular, it will allow a court to be able to consider the wider social value of the activity in the context of which the injury or damage occurred. Clearly, this is aimed at everyday activities such as adventure holidays rather than clinical negligence cases. However, it will be interesting to see whether it might also be employed in this context in further trying to limit scope for liability in this area.

Chester v Afshar
However, despite the moves in Tomlinson and the Compensation Bill to redress the balance back in favour of personal responsibility, the House of Lords in fact moved the other way in the field of clinical negligence on the issue of causation in 2004 in the case of Chester v Afshar. In that case they held that where a surgeon had failed to warn of a particular adverse outcome and that outcome in fact occurred, a Claimant did not need to then go on and prove that had she been so warned she would have in fact acted differently. This case in effect turned the law of causation on its head for cases of failure to warn and has made it much easier to prove liability than might otherwise have been the case. Whilst the effects of this judgment will continue to be worked out for years to come in the courts, the important thing to note is that once again it was the courts exhibiting their own form of law-making in order to ensure that a claim did not fail.

Risk-averse
The real difficulty with these extensions to the law of negligence and the inevitable increase in claims which follow is that professionals and in this context doctors become more risk-averse. Not only may it discourage the little kindnesses which doctors may have offered more readily in the past but it also potentially has an adverse effect on clinical judgments. As the Prime Minister Tony Blair warned more generally on 26 May 2005, “A risk-averse public sector will stifle creativity and deny to many the opportunities to be creative while supplying a few with compensation payments.”

This is a significant concern for health care professionals and above all risks undermining the spirit of public service and clinical excellence which has always been associated with the NHS. In order to combat these effects, it can be looked at from three angles.

I. Legal basis
The first is to review the law of liability for clinical negligence generally and to assess whether it may need narrowing. Until recently, when the rule was overturned, barristers were immune from being sued for any advocacy they undertook in court. This was on the basis that the fear of litigation may make barristers more wary of being forthright in their submissions and may instead start over-qualifying anything they had to say. Such a principle may be analogous to the position of a surgeon in the operating theatre or to a psychiatrist dealing with an unstable patient. The addition of the risk of litigation to an already stressful situation is unlikely to help a surgeon or psychiatrists’ concentration, particularly when things start going wrong and need remedying quickly. Outright immunity from litigation in certain circumstances or for certain practitioners may therefore be considered. Other issues which could be reviewed include the issue of causation outlined above.

II. Alternative basis for compensation
This is not to say that litigants need not be compensated when doctors are given a status immunity. Instead, alternative systems may be considered. In Sweden, for example, a no-fault system of compensation operates for clinical negligence cases. This was considered in 2003 in the Chief Medical Officer, Sir Liam Donaldson’s report ‘Making Amends’ and ultimately dismissed on the basis that it would probably increase the overall costs due to an increased number of claims. However, it might still be considered appropriate in areas where it was deemed that the public interest is better served by doctors being immune from litigation, such as the examples of surgery and psychiatry mentioned above.

III. Professional ramifications
Another way of enabling doctors to make their judgments independently and without being affected by concerns over litigation would be to ensure that doctors are immune from being disciplined either by their professional body or their employer for mistakes that may have been made. This would be on the strict condition that they provide full and frank disclosure as to their mistake and how it might have been avoided. This would also help to encourage a culture of openness in which doctors not only own up to their mistakes, but are then able to assist in ensuring that lessons are learnt so that they can be avoided in the future. Clearly, this could not be done without any caveats and potential exceptions that might be considered include where the professional action has resulted in the commission of a crime or where the doctor’s continued service might be a danger to his or her patients. This would cover not only the very high stress situations encountered by surgeons and psychiatrists but also the more general concerns of, for example, general medical practitioners.

In order to make this work in practice, a rule would also have to be introduced which disallowed such disclosures being able to be used against doctors in subsequent litigation. This would mean that any evidence would have to be gathered independently of these disclosure statements.

COST
Reforms
Much less needs to be said about reducing the actual cost of litigation as there have already been many excellent reforms in this regard. First among these were the so-called Woolf Reforms which aimed to speed up the civil litigation system and to reduce its overall cost. In addition, the Compensation Bill currently before Parliament aims to provide better regulation of claims managers and will hopefully forestall abuses such as the encouragement of frivolous or hopeless claims.

Causation
The real difficulty with clinical negligence cases is that by their nature they tend to be complicated, particularly on the issue of causation since they involved litigants who were already ill before the harmful event. Therefore, the separating out of the pre-existing illness from the event itself can end up in numerous experts arguing over minute pieces of evidence.

NHS Redress Bill
In order to try and tackle this the government has put forward the NHS Redress Bill which is currently before Parliament. This provides for the establishment of a scheme to enable the settlement, without the need to commence court proceedings, of certain claims that arise in connection with hospital services provided to patients as part of the health service.

Currently, this scheme will only apply to claims under £20,000 and it is to be hoped that this will be extended to all claims in the future as it promises significantly to reduce costs if implemented effectively.

Cost of care
One of the most significant parts of the legislation is that it allows part of the settlement to include contracts for future remedial care that is needed, alongside financial compensation. This is highly important since at the moment, litigants are entitled as of right to claim for the cost of private provision of care (under section 2(4) of the Law Reform (Personal Injury) Act 1948). It is to be hoped that in the future, consideration is given to repealing this section in relation to claims against the NHS and instead enabling the NHS to offer their own care packages for the future. This, in the long term, will hopefully bring down costs with the NHS providing those services it can cope with, and contracting the others in from the private sector.

Mediation
The other issue that really hasn’t yet taken root within litigation, despite its encouragement in the Woolf Reforms, is that of mediation. One of the difficulties is that parties often pay lip service to considering mediation and then simply get on with the business of time-consuming and expensive litigation. Whilst is very difficult to do much more than encourage it, there are measures which might be used to facilitate this process.

The first is a more thorough investigation by the courts into what efforts were in fact made to try and mediate the case. Judges could be specifically trained to be aware of ways that parties in effect avoid mediation. Further, amendments could be made to the costs rules to ensure that more detailed investigations are undertaken into this area. For example, a condition of seeking costs might be for a party to make a detailed statement setting out the efforts which were made which could then be challenged by the other side.

In addition to this, stricter guidelines for the granting and continuance of Legal Aid could be made with particular reference to the positive and realistic efforts that have been made towards mediation. It appears that in relation to the Redress Scheme the Legal Services Commission will be able to take the refusal of an offer into account when decided whether legal aid will be granted.

CONCLUSION
Tacitus wrote “The desire for safety stands against every great and noble enterprise”. It is to be hoped that this will not be the case with the NHS and that the need for safety can be balanced against the need for a culture where freedom and creativity are not stifled by rules and regulations. It is therefore suggested in relation to risk that:

1. The law of liability for clinical negligence is reviewed and that certain areas such as surgery and psychiatry should be immune from litigation.

2. Alternative forms of non-fault compensation should apply to these areas.

3. Medical practitioners should generally be immune from discipline subject to certain basic exceptions on condition that they provide full and frank disclosure of their mistakes which would not be able to be used in litigation.

In addition, there are limited areas which still need to be addressed in reducing the legal costs associated with litigation in this area:

1. An extension of the Redress Scheme to cases over £20,000.

2. Consideration of repealing the provision which allows litigants to claim for the cost of private care as of right.

3. Stronger forms of encouragement towards mediation such as greater costs sanctions and stricter Legal Aid Guidelines.

Friday, June 23, 2006

Democracy in the NHS

The book The Future of the NHS edited by Dr Michelle Tempest is now out and available on amazon, having had the launch party on Wednesday evening. At the same time as the launch there was a poll carried out by You Gov which showed a two to one majority in favour of the government withdrawing from the NHS. This poll highlights one of the major challenges for the NHS in the years to come: reducing the democratic deficit which Daniel Hannan MEP and I wrote about in the book. The following represents a summary of that which also appeared at ConserativeHome.com on 28 June 2006.

As we celebrate the 60th anniversary of the passing of the original legislation for the NHS and the institution stumbles from one crisis to another, a timely poll has been carried out by YouGov which shows a two to one majority in favour of the government withdrawing from the NHS. This poll highlights one of the major challenges for the NHS in the years to come: reducing the democratic deficit.

Unfortunately, the only elected representatives so far introduced into the NHS have been to foundation hospitals which would seem to be a case of putting the cart before the horse. It is the commissioners in the primary care trusts (PCTs) rather than the providers of health care that most need accountability if local people are truly to be empowered. They make the decisions as to what resources are given to primary care and in what form and also what resources are allocated to secondary care such as hospitals. The major difficulty with these bodies is that they contain no directly elected representatives. Further, there is nothing to stop its current membership of, for example, GPs, simply allocating resources in a way that suits themselves without sufficient reference to the local needs of patients and of hospitals and other services.
Given the significance of the decisions which the trusts make in terms of resource allocation, we suggest that PCTs should be abolished in their present form and replaced by an independent Commissioning Body consisting of directly elected representatives. These would be under a duty to consult all stakeholders as to how resources should be allocated. These would include GPs, hospital and community doctors, private sector providers of health care and patients. National targets and centralised decision making could then be left behind in favour of local people being trusted to make the decisions that most suit their own communities thus invigorating community involvement in health care.

Alongside this, we also suggest that the whole structure of the NHS needs to be revisited and simplified down to as few layers as possible. It would be hoped that primary care trusts and other health organisations could be given boundaries that coincide not only with each other but also with local authorities. This would facilitate the provision of directly elected representatives in that the new commissioning bodies could then consist of locally elected councillors. With this democratic safeguard, there is no reason why decisions which are currently made centrally should not be made at the more local level of the new commissioning body. This could include, for example, decisions as to which drugs to make available with the National Institute of Clinical Excellence simply taking an advisory role. Further, national targets could be abolished in favour of this devolution of power.

The You Gov poll is therefore a timely reminder that the NHS is in need of invigorating and entrusting back to the people it serves in order that a new flame of civic pride will be lit which will guide the institution through its next sixty years.

Sunday, June 4, 2006

Localism in the NHS: Reducing the Democratic Deficit

This is a chapter which I co-wrote with Daniel Hannan MEP for a new book which is now available on amazon called The Future of the NHS edited by Dr Michelle Tempest.

"Election is a better principle than selection. No Minister can feel satisfied that he is making the right selection over so wide a field."
Aneurin Bevan

Introduction
When the people of Kidderminster objected to the closure of facilities at their local hospital they started a campaign. Such was the strength of feeling that not only did they gather together supporters but they transformed themselves into a political fighting force. Eventually this led them to winning a majority of their local council seats and even the local parliamentary constituency of Wyre Forest. However, despite all of these efforts, they remained disenfranchised. They were unable to exert any direct control over the decision-making process which remained entirely in the hands of the Secretary of State for Health.

This illustrates one of the major challenges for the NHS in the years to come: reducing what has become known as the democratic deficit. It is perhaps ironic given the noble and seemingly democratic ideals upon which it was founded: fair access to health care for all, regardless of wealth.

However, it is also perhaps representative of a deeper malaise in the provision of public services which has become increasingly centralised. Politicians and mandarins in Whitehall issue directives to teachers setting out every detail from the curriculum to class sizes. So, too, with the NHS which is driven by the need to meet a limited number of targets set by central government rather than a goal of fulfilling the disparate health requirements of local communities. Whilst well-intentioned, such centralised decision-making over such an enormous organisation often leads to unintended consequences. A good example of this occurred in the last general election when it transpired that a government directive that all patients must see their GP within 48 hours hadn’t resulted in the desired effect of having appointment times being pushed forward. Instead, patients wanting to book more in advance were told that they would have to call back nearer the time.

The centralisation of decision-making in government has also been accompanied by a rise in two particular entities in the bureaucratic structure: that of the expert and the manager. Increasingly, when there is a difficult decision to be made, government ministers will side-step the issue and set up a commission to look into the matter or a quango to actually make the decision. This is also well-intentioned but takes important decisions even further away from the people who they affect. It also often shrouds what are in fact political decisions under the veil of expertise. In effect it simply abrogates responsibility to others who are less accountable.

So, too, with the rise of the manager. The professionals who deliver public services have been separated from its organisation even at some of the lowest levels. This function has been taken instead by managers. Few would suggest that there is no need for managers or that they do not have the best interests of the various public services at heart. However, again it has led to decision-making being taken away from the local level and moved more to the centre.

These developments have led people to become disillusioned both with politicians and very often with the provision of the services they control. We suggest is that those who run the NHS return to first principles and aim to reform it with two particular principles in mind:

1. decisions should be made as closely as possible to the people they affect; and
2. those people should have as much say in those decisions as possible.

In effect: localism.

The following merely provides a number of suggestions and illustrations as to how this may better be achieved and is not in any way meant as a comprehensive review of all the possibilities.

Patient choice
One of the biggest problems facing the NHS is that despite the undeniable good intentions behind it, it has produced what the Prime Minister has called a “deeply unequal” system where the rich opt out and the least well-off sometimes receive the worst health care. One way of tackling this issue is to try and give patients as much choice as possible in the services available to them, the ultimate devolution of power.

This is now being provided in a limited form with every patient needing a hospital referral being given the right to a choice of at least four. The target for elective treatments is that by 2008 the patient will be able to choose from any hospital in England that can provide care to NHS quality and price.

However, it is to be hoped that this does not end up becoming a choice in name only with no diversity in the services which are offered. In particular, it is hoped that private provision of state care will be allowed to flourish. Private companies should be allowed to bid to provide patients with the care they need and ultimately the funding to provide that care.

Further, whilst it is recognised that informed choices will be more difficult to be made in areas such as mental health care, it is hoped that the principle of giving patients the power to choose the service provider is extended to as many services as is is practicable to do.

In answer to the argument that such measures may ultimately result in unfairness with some patients being giving more choice than others, the answer is simple. The unfairness is that which exists at present due to the one-size-fits-all system. For example, figures show that patients are twice as likely to die in the worst performing hospital in England as they are in the best. Increased choice will reduce unfairness by catering to the particular needs of particular communities recognising that inner city populations have very different health care needs to rural areas. By embracing pluralism, standards will be driven up for all.

Diversity of provision
Inextricably linked to providing patients with as much choice as possible is the need to liberate the NHS from the top-down approach of a state monopoly obtaining services only from itself. This can be replaced by a flourishing market attuned to local conditions and needs. If private and not-for-profit organisations can provide the same or a better service for less cost there is no reason why they should be restricted in doing so. This currently accounts for only about 10% of electives and overall around 1% of the total NHS budget.

Private providers should be encouraged to bid for as many services as possible and there should be little or no limit on the amount of services they provide. The move from a command to a mixed economy will help to stimulate competition and vitality within the health sector. This in turn will produce innovation and improvements in productivity which will be essential in the years to come in helping to meet ever-increasing health expectations.

Elected bodies
In addition to the democratic effect of increased patient choice, the structure of the NHS itself should also be democratised. The most significant body within the present structure is the primary care trust (PCT) which commissions the majority of NHS services. They make the decisions as to what resources are given to primary care and in what form and also what resources are allocated to secondary care such as hospitals.

The major difficulty with these bodies is that they contain no directly elected representatives. Further, there is nothing to stop its current membership of, for example, GPs, simply allocating resources in a way that suits themselves without sufficient reference to the local needs of patients and of hospitals and other services.

One possible route is simply to make PCTs more representative with hospital and community doctors being added along with private providers and also members of the community. However, other than the public representatives, each of the other groups would at least have an interest in simply arguing for more resources to be allocated their own way.

Given the significance of the decisions which the trusts make in terms of resource allocation, the authors advocate that PCTs should be abolished in their present form and replaced by an independent Commissioning Body. This could take one of two forms. One might be a panel of experts or managers who could listen to all the arguments and then make the decisions. However, not only is this wholly undemocratic, it also falls foul of the difficulties set out above which occur when panels of experts start making political decisions.

The preferred option is that the commissioning body should consist of directly elected representatives. These would be under a duty to consult all stakeholders as to how resources should be allocated. These would include GPs, hospital and community doctors, private sector providers of health care and patients. Local people should then be trusted to make the decisions that most suit their own communities having been provided with the best possible advice from the professionals, thus invigorating community involvement in health care.

Unfortunately, the only elected representatives so far introduced into the NHS have been to foundation hospitals which would seem to be a case of putting the cart before the horse. It is the commissioners rather than the providers of health care that most need accountability if local people are truly to be empowered.

Transparency
The means of providing the elected representatives is connected to another reform necessary for making people feel closer to the decision-making process. At present the structure of the NHS is so complicated that even those who work within it hardly understand how all the funding streams tie together. A big reason for this is the ad hoc nature in which the NHS has developed, often rolling from one crisis or reform to another without any principle underlying it.

The whole structure needs to be revisited and simplified down to as few layers as possible. It would be hoped that primary care trusts and other health organisations could be given boundaries that coincide not only with each other but also with local authorities. This would facilitate the provision of directly elected representatives in that the new commissioning bodies could then consist of locally elected councillors. This would tap into the already vibrant local party politics and help further to politicise the electorate over deciding the future of their own health care services.

It should be noted that ironically this would truly be bringing the NHS back to its roots since the original plans contemplated much local government involvement. However, in order to appease the medical profession, when the NHS was finally introduced the primary care administration of the NHS had the least amount of local democratic accountability.

Increased local powers
One issue which the introduction of elected representatives to Foundation Hospitals has highlighted is the need clearly to define the powers and responsibilities of those who are elected. Commissioning bodies should have their functions clearly delineated from the start.

The introduction of directly elected representatives not only invigorates an organisation but it also empowers it through the extra legitimacy. With this democratic safeguard, there is no reason why decisions which are currently made centrally should not be made at the more local level of the new commissioning body. It is therefore hoped that their responsibilities would be wide.

A good example of a power which could be devolved is that in relation to the guidelines issued by the National Institute of Clinical Excellence (NICE). These were introduced to try and end the so-called postcode lottery in NHS prescribing and enforce the same rules across the board. However, this suffers from a number of problems. First, it fails to respond to local needs. Second, it again disguises what is a political decision (cost/benefit analysis) as something solely for the realm of experts. This false distinction was highlighted recently over the use of Herceptin for early breast cancer which led to legal action and the Health Minister taking the unusual step of in effect overruling NICE arguably for political expediency.

We believe that NICE should be abolished. A Parliamentary Select Committee should deal with the making of recommendations for drugs and conduct detailed consultation. The experts involved with the Institute (who themselves are to be applauded) would be able to give their advice and opinions and then the politicians could produce a report spelling out all the costs and the benefits and making recommendations. The newly formed Commissioning Bodies could make their own decisions in the light of this advice in consultation once again with all their local stakeholders. The irony is that many experts might welcome being able to return to their traditional role of providing medical guidance and opinions without being forced to make what are in effect political decisions.

An example of a policy which could be scrapped following the introduction of the Commissioning Bodies would be the use of national targets. The priorities for each particular area could be decided in advance by the locally elected body following full consultation. In fact, this is the sort of issue which the local representatives would probably have addressed in their manifestos.

Empowering professionals
The other way of ensuring decisions are made as closely as possible to the people they affect is by bringing doctors and other health care professionals back into the decision-making process.

The first way to do this is through a formal role in the consultation with the Commissioning Bodies. Doctors have been subjected to growing numbers of national standards frameworks. These hinder their clinical autonomy and their ability to provide for the needs of specific patients. It is hoped that decisions on issues such as this can now be made at a local level initially by the Commissioning Bodies and then implemented by the doctors.

In addition to the limitations which have come from centralised planning, doctors and others have also had many of their policy and operational powers given to managers. Whilst the policy-making decisions which managers currently take should be devolved to the Commissioning Bodies, other more day to day decisions on resource allocation should be returned to the doctors and others who previously made the decisions. Those managers who remain should be left with at most truly administrative responsibilities.

Conclusion
Almost sixty years after its foundation, the NHS is in need of invigorating and entrusting back to the people it serves. Through a mixture of patient choice, diverse providers, democratic accountability and re-empowering of the professions, it is hoped that a new flame of civic pride will be lit which will guide the institution through its next sixty years.
Daniel Hannan is an MEP and one of the 22 authors of ‘Direct Democracy: An Agenda for a New Model Party’ published by direct-democracy.co.uk, 2005. Tim Kevan is a barrister at 1 Temple Gardens.

Saturday, June 3, 2006

The Future of the NHS

I´ve written two chapters for a new book which is now available on amazon called The Future of the NHS edited by Dr Michelle Tempest. It´s aimed at stimulating much needed debate in this area and has contributions from all the major political parties as well as numerous professionals within the NHS. Definitely a must read for anyone interested in the health system. To read the two chapters I contributed, click on the following: Localism in the NHS (with Daniel Hannan MEP) and Redressing the Compensation Culture.