FOCIS
FOCIS

FOCIS response to Welsh Assembly redress proposals


Anne-Marie Carpanini-Lock

Improving Patient Safety Team

Quality Standards & Safety Improvement Division

Welsh Assembly Government

Freepost - NAT8910

Cathays Park

Cardiff CF10 2NQ


Dear Madam


FOCIS RESPONSE TO THE CONSULTATION DOCUMENT - PUTTING THINGS RIGHT - A BETTER WAY OF DEALING WITH CONCERNS ABOUT HEALTH SERVICES



Please accept this as the FOCIS response to the consultation document in relation to the introduction of proposals for a Welsh NHS redress scheme.



RESPONSE



FOCIS welcomes any initiative to improve the way that patients who have, or allege that they have, suffered injuries as a result of the experience with the Health Service have their concerns addressed in a speedier, fairer and more open way. FOCIS also welcomes any initiative that allows such people to have appropriate support to raise their concerns. 



It is accepted and indeed asserted by FOCIS members that the current complaints system does not always achieve its stated goal.



As an initial observation, FOCIS is concerned that the costs associated with the appointment of appropriate senior investigations managers, together with the extent of training required for existing or new staff within the scheme will do nothing other than add a significant layer of bureaucracy and cost to the existing NHS system.



We feel that the following problem areas fundamentally undermine the stated aims of the Welsh Assembly:



OPEN CULTURE



There is no current direct duty of candour to patients embodied within the proposed regulations. There is no obligation imposed upon NHS staff to notify a concern to them. It seems to FOCIS members that requiring an NHS staff member to notify a concern is entirely consistent with the requirement that the NHS organisations are more open with patients about concerns that are raised. Not requiring such a duty of candour is inconsistent and will not, in our view, lead to the necessary confidence that patients will require if the system is to truly represent a cultural change in the NHS. Such an obligation is imposed by professional rules on, for example, the legal profession.



LIMITATION PERIOD



The current proposals require concerns to be raised within a year but there is built in discretion on the part of the NHS organisation to investigate outside of that period if the NHS organisation considers it reasonable to do so. This relies upon a subjective assessment by the NHS organisation. There is a lack of built in independence to that decision making process. It is our experience that many patients do not raise concerns within a 12 month period. This could be for many reasons including the lack of openness, the fact that they are continuing to receive ongoing treatment from the healthcare professional or that they have not become aware of a problem/related injury until after 12 months has expired. We believe that complaints relating to injuries should be investigated if the patient so wishes provided that they are raised within 3 years of the incident concerned. 



The current proposals provide that the limitation period is suspended only upon the commencement of "redress" which is after the investigation process. The investigation process may take a particularly long period of time and this would generally eat into the primary limitation period for patients. In addition any limitation holiday from the commencement of redress terminates at the end of 3 months from the date in which the NHS makes an offer of financial compensation. This would appear to be a totally inadequate period of time for reflection and for patients to obtain independent advice. The limitation holiday should run from the date of notification of a concern and not from the date of "redress". 



TRANSPARENCY



Regulation 3 under general principles for handling and investigation of concerns seeks to ensure that concerns are dealt with efficiently and openly and are properly investigated. Regulations provide that persons who notify concerns receive a timely and appropriate response and are advised of the outcome of the investigation.



FOCIS is concerned  that ;



  • There will be insufficient numbers of suitably experienced staff to carry out investigations in relation to such concerns.

  • Because investigations are carried out internally within the NHS organisation there will be a perception, if indeed not a reality, of the investigation being less that independent.

  • The grading of the concerns will be subjective and may not mirror the concern to the patient in terms of importance and value (see particularly in relation to the value of compensation claims to be considered under the redress scheme - see below).

  • The regulations provide that the NHS body investigate matters raised in the manner which appears to that body to be the most appropriate, including a consideration of the most appropriate method of involving the person who notified the concern, the level and type of support required by them and the gathering and analysis of all relevant information. These are effectively all subjective areas of investigation maintained within the NHS body to which the patient who has raised the concern has on the face of it very little potential involvement.

  • Regulation 20(g) provides that the NHS body will give consideration as to whether the 'concern' requires independent clinical advice from a person whose name is included on the All Wales Register of Experts maintained by the Welsh Assembly Government. FOCIS is fundamentally opposed to such regulation which is not consistent with the requirement for an NHS body to obtain independent advice. FOCIS considers in respect of those patients who raise concerns in relation to alleged injuries and potential compensation arising out of any such experience  that such persons should automatically be provided with:-

    1. Copes of all material the subject of the internal investigation.

    2. A say in the choice of the appointed independent clinical advice practitioner.

    3. A copy of any such report provided without vetting.

    4. The facility to seek independent legal advice in respect of any such report and investigation as the matters proceeds.



  • It is the FOCIS view that Regulation 28(3) which provides that the NHS body may withhold a copy of the investigation report before an offer of redress under the regulations is made, is not acceptable and is inconsistent with an open and transparent complaints system 


COMPENSATION LEVEL



It is our understanding that the impact assessment in relation to the new proposed regulations was based upon compensation figures within Wales in the year 2006/7 and in connection with clinical negligence claims settled for less than £20,000. The proposed regulations differ. They propose that the redress scheme will operate in respect of damages for pain, suffering and loss of amenity of £20,000 but with out of pocket or special damages to be added thereto. This would mean that virtually all fatal accident claims and possibly the majority of all claims will be encompassed by the redress scheme. This would raise the level of complexity involved in such cases and indeed the importance to patients' families beyond that envisaged when the impact assessment was carried out. 



There are a great many clinical negligence claims that settle with general damages for pain, suffering and loss of amenity of £20,000 or less but where the other heads of loss raise the total value of the claim on occasions to beyond 6 figures. FOCIS does not consider the redress scheme to be an appropriate vehicle for the consideration of those level and complexity of claims. The regulations should restrict the total amount of compensation for consideration under the redress scheme to an all in maximum of £20,000 or less. To our mind the financial impact assessment upon which we assume the regulations are based would otherwise be fundamentally flawed.



The consultation document refers to the possible operation of a 'tariff' scheme for compensation, although this does not appear in the regulations as drafted. FOCIS is opposed to the introduction of any such scheme. It is the experience of FOCIS members that lower value claims are sometimes the most difficult to accurately value and would not sit well with a tariff based scheme.



LEGAL AND EXPERT ADVICE COSTS



We are concerned that there is very little information within the regulations as to the availability of independent legal advice and its funding. The regulations refer to an 'Agreed Framework' but FOCIS are not aware of the existence of any such framework. Patients should as a matter of right have access to appropriately qualified and experienced legal practitioners to advise them through the process. Without this support, the proposals will lack the credibility and independence that they need to make them a success.



The figures contained in the impact assessment are based on the low value claim settlement record.



There is reference in the impact assessment to specialist claimant legal practices bidding against each other to supply such legal advice, although the regulations remain silent in relation to any such provision.



FOCIS considers it would be unacceptable to have Claimant lawyers bidding against each other for NHS related work from an NHS body who would normally be acting in the defence of claims against the very same lawyers prosecuting them on behalf of patients.



At the present time it appears any legal advice will be limited to advising on expert evidence obtained unilaterally by the NHS organisation accompanied, by an offer of compensation, if appropriate. The extent of availability for funding independent clinical expert advice by Claimants lawyers on behalf of patients is non existent.



Equally the regulations provide that there should be court approval in cases involving children or patients who lack capacity but again there is an absence of detail in relation to the costs associated in obtaining such approval and whether such costs will be met in full by the NHS organisation so as to ring fence the protected or vulnerable parties entitlement.



It is the FOCIS view that patients should be represented to a high standard by legal representatives experienced in dealing with such claims at appropriate and reasonable reward and with appropriate facilities to investigate the adequacy or otherwise of an offer of redress or compensation and within a reasonable time frame.



CONCLUSION



It is FOCIS's view that the scheme's success will be dependent upon patients being satisfied with the process. Patients will demand confidence and impartiality in any enquiry. Apologies, fairness and transparency will be paramount. A need to learn lessons will be foremost in patients' minds and adequacy of compensation or other redress offers where necessary will need to be properly and accurately calculated. Anything falling short in any respect is likely to have patients seeking independent legal advice in any event with a consequential potential increase in both the delay and cost in obtaining actual redress. It is FOCIS's concern that the current regulations do not provide such transparency, openness, independence nor do they on their face facilitate adequate and fair assessment of any offer of compensation


1.04.2010

Trevor Ward

for FOCIS



NOTE:



The Forum of Complex Injury Solicitors



FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions. The objectives of FOCIS are to:-



  1. Promote high standards of representation of claimant personal injury and medical negligence clients,

  2. Share knowledge and information among members of the Forum, 

  3. Further better understanding in the wider community of issues which arise for those who suffer serious injury, 

  4. Use members' expertise to promote improvements to the legal process and to inform debate, 

  5. Develop fellowship among members.


See further www.focis.org.uk.



Membership of FOCIS is intended to be at the most senior level of the profession, currently standing at 27 members. The only formal requirement for membership of FOCIS is that members should have achieved a pre-eminence in their personal injury field. Three of the past presidents of APIL are members of FOCIS. Firms represented by FOCIS members include:



Anthony Gold

Boyes Turner

Charles Russell

Digby Brown

Field Fisher Waterhouse

Freeth Cartwright

Girlings

Hodge Jones & Allen

Hugh James

Irwin Mitchell

Kester Cunningham John

Kingsley Napley

Leigh Day

Linder Myers

McCool Patterson Hemsi & Co

Osborne Morris & Morgan

Pannones

Parlett Kent

Potter Rees

Prince Evans

Russell-Cooke

Russell Jones & Walker

Stewarts Law



FOCIS has been the name since 2007 of the organisation formerly known as the Richard Grand Society (founded in 1997 based on the concept of the American 'Inner Circle of Advocates' which had been formed in 1972 by Arizona and San Francisco Attorney Richard Grand). 


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