NHS Redress Act

On 8 November 2006, the NHS Redress Bill received Royal assent. The Bill, which was published back in October 2005, created powers to set up an NHS Redress Scheme. The aim of the Scheme is to provide a more speedy resolution to the claim with more consistent outcomes and to set up a framework to provide an investigation, apology, compensation and care (where appropriate) without the need to go to Court. It is hoped that the Scheme will establish a more open and fair culture in the NHS and that it will ensure that lessons are learned from mistakes.

The origins of the Bill are in the Chief Medical Officer’s Report, ‘Making Amends’, of 2001. This report set out the importance of reforming the clinical negligence system as it was found to be confrontational, acrimonious and bitter with a lack of a ‘cards on the table’ approach. The Bill is the enabling legislation for the Scheme and does not provide detail in respect of the Scheme. This has to be designed by Department of Health Regulations and Policy.

When the Bill was first published, it applied to all hospital claims under £30,000. This limit has been reduced to £20,000. It is felt that claims over this amount are likely to be more complex and therefore should not be contained within the Scheme.

The most controversial aspect of the Bill was the NHSLA’s involvement in the Scheme. Initially, it was intended that the NHSLA would investigate both liability and the amount of compensation without the patient having any right to independent medical expert or legal advice. This, therefore, meant that the NHSLA would be acting as both Judge and Jury and there was a real risk that patients would under-settle their claims.

The amendments that have been agreed to the Bill before it became an Act make it a more credible piece of legislation. The Act now includes the joint instruction of independent medical experts to advise on the merits of the case if the patient is not offered redress. It also provides for specialist legal advice in relation to the joint instruction of experts and the offer of redress. This advice is paid for by the Scheme. Prior to this step, the NHS first investigates the case and can make an offer of redress, which can include an offer of compensation. Patients must also be provided with a report on the investigation and the action plan that has been compiled in relation to improving the service and the lessons learned. The Trust also have to provide an annual report on the lessons that they have learned and the actions they have taken as a result.

It certainly appears as if the Scheme has the potential to be successful. However, the Act has no specific details whatsoever in relation to how the Scheme will operate in practice and is just a statutory framework. It is the Regulations that will provide the detail and a close eye will need to be kept on their content to ensure that the Scheme that is eventually introduced is both credible, practical and independent. It is also important to ensure that the Scheme enables the NHS to learn from their mistakes such that the quality of care improves. The Act does not state who starts proceedings and how and in what circumstances those proceedings are commenced. Nor does it set out any time limits in relation to the commencement of proceedings and therefore it is uncertain whether the Limitation Act applies to the Scheme or whether some other period will be imposed. Finally, the Act does it state who oversees the investigation, who makes the decisions, who decides the level of compensation and how it is to be assessed.

Great progress has certainly been made to ensure that this Scheme is an acceptable alternative to litigation for claims under £20,000 but a lot more work is still required to provide the detail of the Scheme. There is no precise time frame for commencement of the Scheme but it is anticipated that this should be during 2008.

Published 01/12/2006.