Before the Department of Health
proceeds further with its consultation on fixed costs, I wonder if they have
discussed their plans with Welsh Health Boards and their executives to see what
lessons can be learned from the system here in Wales. Probably not.
In Wales we were promised great things
for our clients when the Putting Things Right/Redress Scheme came into being in
April 2011. The scheme in Wales is
voluntary and is intended to resolve cases where financial compensation does
not exceed £25,000. Staff across the
Health Boards would receive appropriate training to enable them to robustly
conduct and oversee investigations in a consistent, fair and timely manner.
The intention was “investigate once,
investigate well”, making it easier for patients to raise concerns and to be
engaged and supported in the process.
Perhaps more importantly the Health Board would demonstrate learning
when things had gone wrong.
Within 30 working days of lodging a
concern they would provide their final reply.
If they decided there might be a qualifying liability they would make an
offer and notify the patient of eligibility to seek legal advice from a solicitor.
The fee paid to the solicitor by the
Health Board is £1,600 excluding of VAT.
Further stages are set out in the legal fees framework providing for
additional fees if independent reports are commissioned.
Since then, my firm has not dealt with a single case where the
final reply has been produced within 30 working days. Most clients come to us for advice either
when they have received an offer of compensation or the Health Board has denied
a qualifying liability and they are unhappy with the response. Many wait 12 months or longer to receive the
Summarised below are a selection of
cases which could and should have been dealt with under the fixed fee scheme and
been resolved within a few months to the satisfaction of the client and with us
receiving a fixed fee. We removed all but one of the cases from the scheme
because of the delays caused by the defendants:
client consented for a total abdominal hysterectomy. Following surgery she was told that only her
ovaries had been removed but the Health Board was unable to explain why. A
complaint was lodged. Liability was denied. We removed the case from the scheme
and served a letter of claim and an offer.
The letter of response was received eight months later. Shortly
afterwards compensation was negotiated at £18,000. Had the Health Board settled
as requested the cost to them would have been £19,920 (£18,000 damages and
fixed fee of £1,600 plus VAT). Instead,
their total expenditure was £34,000* (£18,000 compensation and £16,000 costs)
excluding their own legal costs.
week delay in diagnosing fracture to neck.
Liability was denied and the Health Board refused to instruct a
liability expert. The case was removed from the scheme. Damages were subsequently
negotiated at £1,250. Total expenditure to the Health Board was £13,695*
(£11,775 costs, £1,250 compensation) excluding their own costs. Had they acted
sensibly their expenditure would have been £2,850.
error which led to the exacerbation of epilepsy. The case could have settled
under the redress scheme for £2,000 damages and £1,600 costs but, despite all
attempts by us to settle, the defendant was completely inflexible. The case
eventually settled for £2,000 damages and costs of £21,000*.
on behalf of deceased elderly lady on the basis that she suffered with pressure sores and from malnutrition.
Liability was admitted six months after her death and an offer of £2,500 was
made. We advised that the offer was insufficient
and put forward a counter offer of £20,000. Our costs at that stage were £500. Settlement
was agreed at £20,000 almost 12 months later. Because the case remaied in the
redress scheme we received a fixed fee of £1,600 when the actual costs were
The conclusion is clear: the fixed fee
scheme in Wales is not working. NHS Wales is not learning from its
mistakes. It is repeating mistakes and
paying the price for that. Even when liability is admitted, cases are usually
grossly undervalued. Clients are increasingly distrustful of the Health Boards
and frustrated and upset by their delays and the effect on health service funds
that could be put to much better use.
* These cases were concluded before
the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act and include
success fees and after-the-event insurance premiums.