Redress in the NHS

Abstract

The cost of clinical negligence litigation is rising year on year. In this era of austerity, a response is critical. In 2011 an NHS Redress Act scheme was introduced in Wales which will align procedures for complaints and restoration. A Scottish No Fault Compensation Review Group recommended in 2011 that tort based liability is abandoned. In England options are limited by virtue of the size and complexity of the NHS. The Government have proposed reform of civil litigation costs which will reduce the legal costs for the NHS by around a third, but the Health Committee issued a report in June 2011 warning that 'preservation of access to justice will be the yardstick by which these proposals will be judged'. In 2003 the Chief Medical Officer (CMO) showed that civil litigation costs reform alone would not adequately balance procedural and substantive justice. A tort based, fast track, low value clinical negligence scheme was proposed. The NHS Redress Act 2006 enabled a scheme to be implemented but England failed to act. Meanwhile reforms of the complaints process, professional and institutional regulation and legal requirements of openness attempted to improve NHS redress. This paper considers firstly whether the NHS reforms combined with the civil litigation costs reforms address the CMOs concerns over clinical negligence litigation. Secondly, I consider two proposed fast track schemes – Lord Justice Jackson favours an NHS Redress Act scheme, and Lord Young favours an extension of the fast track Road Traffic Act (RTA) Personal Injury scheme implemented in 2010. I compare the two with each other and with the schemes proposed in Wales and Scotland. The English fast track schemes pose advantages over civil litigation cost reform alone, but fall significantly short of the CMO’s 2003 recommendations.

Keywords: redress, complaints, medical negligence, NHS Redress Act