Blueprint For NHS Claimants

Following extensive debate and lobbying, the NHS Redress Act 2006 received Royal Assent last November and now provides the framework under which the Secretary of State for Health will set up an NHS redress scheme to come into force in or after April 2008. A second period of consultation on the scheme is taking place during 2007.

To recap, the objective of the redress scheme was to enable claimants to obtain redress more easily for their injuries and losses incurred as a result of substandard medical care without necessarily resorting to litigation.

It was also intended to encourage a more open culture within the medical profession, discourage the practice of defensive medicine and limit the perceived growth of a litigation culture. A financial cap of £20,000 has been placed on the scheme, meaning that patients with 'qualifying claims' will only be offered up to a maximum of £20,000 in damages. A patient who requires further medical treatment will be offered it on the NHS - the cost of future private medical care will not be covered.

Significant concern remains in relation to the independence of the scheme, indeed this has probably been the biggest contention from the outset. The scheme is to be overseen by the NHS Litigation Authority, the body which will decide upon liability and the value of the claim as well as make any settlement offers. The NHS Litigation Authority is a Special Health Authority (part of the NHS) set up to deal with negligence claims against the NHS. The scheme is, therefore, not independent and many have commented that the NHS will be acting as judge, juror and assessor. This is unlikely to be an attractive proposition for many claimants who may have understandably already lost confidence in the NHS.

There is, at least, now the opportunity for claimants to have independent legal advice (unfortunately limited to advice in relation to instructing an expert and when a settlement offer is put forward) and to be able to jointly instruct a medical expert, with those costs being met under the scheme.

The scheme will be limited to cases involving secondary care, ie hospital care, as opposed to primary care (eg from a GP, optician or chiropodist). Technically, it is not compulsory and a claimant can decide to reject...