Many victims of negligence are genuinely not only interested in compensation. This is especially true in clinical negligence cases. The Independent reported the case of one Kate Coyle who said:
“We just wanted to know why things had gone so wrong and have some reassurance that it would never happen again. We had no choice but to see a lawyer because the [NHS] trust kept fobbing us off. It took three years of battling to get a three-line apology from the trust and just over £20,000 compensation.
“We had absolutely no interest in the money but it was the only way they would accept responsibility – take it or leave it. We spent so much energy writing letters, while trying to grieve, just to get an apology.”
The English legal system is restricted – courts only have the power to order compensation, they can not force apologies or explanations of what went wrong to be given. However this can be achieved through mediation. By inviting a mediator to help work with the parties to resolve the dispute a full spectrum of redress opens up. The Mediator in a clinical negligence claim can explore precisely what the claimant wants by way of redress. The defendant may discover that they are not been asked for the world and can work towards a solution with which everyone agrees.
The Government did acknowledge the need for wider options for dispute resolution by passing the NHS Redress Act 2006. The Act gave ministers powers to produce a scheme granting claimants a variety of avenues of redress, it states at section 3;
(2) A scheme must provide for redress ordinarily to comprise—
(a)the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned,
(b)the giving of an explanation,
(c)the giving of an apology, and
(d)the giving of a report on the action which has been, or will be, taken to prevent similar cases arising,but may specify circumstances in which one or more of those forms of redress is not required.
Hence victims would still get much needed compensation for their injury or to cover losses whilst in addition the act recognises the need for a holistic resolution. Apologies, explanations and confirmation of what steps have been taken to prevent recurrence are envisaged.
Unfortunately the secondary legislation has not been made. So the Government has given itself the power to set up the scheme but hasn’t got round to actually setting it up, a situation the Parliamentary Health Select Committee described as “appalling”. The report says:
The NHS Litigation Authority this month revealed a 22 per cent year-on-year rise in compensation payouts in England. Nearly half of the £807m paid out by the authority in 2008-09 was spent on lawyers. There has been a four-fold increase in clinical negligence costs incurred by the NHS over the past decade. Official figures from 2002 show that legal fees exceed the sums paid out to patients in two thirds of cases where compensation is under £50,000. Though the time taken to settle a claim has been reduced, it still takes on average 1.4 years.
The Government needs to revisit the legislation as soon as possible but the current political climate suggestions this is unlikely. In the meantime it could promote mediation as a cost effective method of dispute resolution which offers claimants the opportunity to get what they want and the NHS the opportunity to dramatically reduce it’s negligence bill.
Related posts:
