MPs call for retention of fault-based system in NHS litigation

The existing, fault-based system offers the best opportunity possible for NHS patients to establish the facts of their case and obtain redress, an influential committee of MPs has said.

The health select committee had looked at no-fault compensation schemes but decided that the current regime should be kept, albeit that some changes needed to take place.

“The activities of ‘claims farmers’ drive up the costs of pursuing a legal case and these organisations must be subject to tighter regulation,” the MPs said.

The report – Complaints and Litigation – meanwhile warned that the government’s decision to end legal aid for clinical negligence cases “could erode the settlements for the most seriously injured claimants, and could undermine access to justice for many”.

The MPs also urged the government to bring forward the details of its plans for speedy resolution of smaller claims.

Other key findings from the report were:

• The improving level of satisfaction with the local resolution stage of the complaints process was welcome, but more could still be done to improve the patient's experience. “The government is now in possession of sufficient data to enable a full review of the system, and should do so without delay,” the MPs said. “In this review, it should carefully consider the development of separate systems for investigation and resolution of customer care complaints and more serious complaints about clinical issues."
• The operational and legislative framework within which the Health Service Ombudsman operates requires review. “Patients and the public perceive the Ombudsman as offering a general appeals process to the local stage of the complaints system, whereas the role is in fact much narrower than that,” the MPs said. The review would look to make the framework compatible with this wider purpose.
• Patient advice and liaison services (PALS) are a useful first point of contact for complainants, “but need to be more capable, more visible, and integrated into other systems for resolving complaints”.
• Independent complaints advocacy services (ICAS) support patients with the practicalities of complaining and provide important support, especially to vulnerable complainants. However, there are artificial boundaries that get in the way of this work. “For example, ICAS cannot currently support patients to make complaints to the General Medical Council or other professional regulators, a situation that should be remedied by the government.”
• The NHS needs to do more to promote the awareness of, and access to advocacy.
• Commissioning authorities have the potential to be the engines that drive improvement in the complaints system. When things go wrong in their care, patients expect full disclosure of the facts, "something that is not always the case".
• Supported by culture change, a contractual duty of candour between providers and commissioners, and between commissioners and their populations would support openness and honesty in the NHS. “Model commissioning contracts must reflect this and must also mandate access to comparable data on complaints to commissioners. Where a complaint is found to be valid, and an organisation puts an action plan in place, these action plans must be implemented by the provider and returned to the commissioner and the Local Healthwatch, who can observe progress.”
• It was difficult to establish which organisation monitors the performance of the NHS against complaints standards. The committee said it could see potential for failing organisations to be overlooked.
• Healthwatch England should receive intelligence about NHS providers from Local Healthwatch organisations, and should monitor the performance of all providers of NHS care and treatment against a set of agreed complaints handling standards.
• Although the government’s proposed health reforms do support greater information sharing between bodies, they required further strengthening. The committee said it had ongoing concerns about how primary care would be commissioned, and also how complaints about primary care would be handled in future. The forthcoming "Information Revolution" report needed to at least consider how complaints data could be used by the NHS to help it to learn and improve.
• The government's proposals for ending the secrecy of Foundation Trust Board meetings were welcome.
• Change would only happen in the NHS if there was a change in the culture, as well as in the procedures and practices. “Staff must feel that there is clear guidance on when they will be held to account for errors, and when these will be seen as systemic failings of an organisation,” the MPs said. “They should receive regular feedback on the volume and nature of the complaints about them and their teams, and anonymous patient feedback should be used to support improvement.”

Philip Hoult