Analysis

An alternative to the clinical negligence system

BMJ 2007; 334 doi: https://doi.org/10.1136/bmj.39050.696192.94 (Published 22 February 2007) Cite this as: BMJ 2007;334:400
  1. Richard Furniss, barrister,
  2. Sarah Ormond-Walshe, barrister
  1. 22 Old Buildings, Lincoln's Inn, London WC2A 3UP
  1. Correspondence to: Sarahow{at}22ob.com
  • Accepted 27 November 2006

Richard Furniss and Sarah Ormond-Walshe analyse the NHS Redress Act and compare it with the current system

The current system for patients to obtain compensation after medical error has been much criticised. It is seen as complex, slow, and costly, both in terms of legal fees and time of clinical staff. Patients are said to be dissatisfied with the lack of explanation and apologies, and the system is believed to encourage defensiveness and secrecy in the health service.1 After publishing a consultation document in 2003 that recommended reforming the way in which allegations of clinical negligence in the NHS are handled,1 the government passed the NHS Redress Act 2006 last November. We examine its likely effects.

Claims under the new act

The act introduces a scheme for redress without recourse to the civil law. The scheme will apply to England and Wales and covers only hospital care. It makes provision for investigation, assessment of liability, and remedy for the complainant. This remedy might include an apology, explanation, or award of financial compensation up to a ceiling of £20 000. The scheme is an alternative to (although not a substitution for) proceedings in the civil courts.

The scheme will not be launched before April 2008 and the regulations providing procedural detail will be promulgated in 2007, but the broad process for making a claim is given. The applicant (usually the aggrieved patient, but perhaps a representative of a dead patient) would initially complain to the NHS trust. The NHS Litigation Authority, which currently deals with clinical negligence claims on behalf of NHS trusts, will oversee all trusts. The trust will investigate the claim using methods that seem to be the same as under the existing complaints procedure. As a consequence of the investigation, the patient may get an apology, explanation, or offer of compensation. The …

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