Editorial

Readers of this journal will be all too aware of the debates which have been going on for years now, about finding a better way of identifying failures in healthcare and compensating injured patients and their families than relying solely on the system of civil litigation. Following a review, the chief medical officer for England, Sir Liam Donaldson, published Making Amends. ¹ In this, he rejected the notion of a ‘no-fault’ compensation scheme as such (apart from a variant on that theme for brain-damaged children) and made a number of recommendations, including the setting up of an ‘NHS Redress Scheme’ for lower value claims against the NHS as an alternative to litigation. The scheme for brain-damaged babies was abandoned because of the numerous practical difficulties with it. No doubt, very prominent in decision-makers' minds was the enormous financial consequences of compensating all babies damaged in childbirth, whether or not negligence and causation can be established. However, plans for an NHS Redress Scheme were taken forward and given a statutory framework in the form of the NHS Redress Act 2006. The legislation was keenly debated as it went through Parliament. AvMA lobbied hard for improvement to the plans and won some notable concessions. None but the most loyal followers of the Government's official line were of the opinion that the Government had got the scheme perfectly right. It failed by a huge margin to live up to the aspirations for a radically different way of compensating patients, chiefly because of the insistence of using the legal definition of negligence but without any of the rigour and independence of the court system. The NHS was to be judge over itself in these cases. Nonetheless, there was a unique consensus in all of the debates that an alternative to litigation had to be found. The NHS Redress Scheme provided for by the legislation did at least offer some alternative, however modest the overall improvement might have been. However flawed the scheme's process, there was more chance that lower value cases would have been compensated more speedily and with less cost and stress. AvMA's calls for some independence and representation for Claimants to be introduced even reaped some improvement. What followed since the passing of the Act late in 2006 has up to recently been silence. At AvMA's annual complaints and redress conference in April this year, it became transparent for the first time that Ministers were having second thoughts about the whole venture. Doubt remains about whether the NHS Redress Scheme will be developed in England at all. There are certainly no plans for drafting regulations for it in the foreseeable future.

This is of course a sign of massive ineptitude and failure to think things through and listen to what well-informed stakeholders have to say first before pressing ahead with legislation. It is frustrating for those who have put so much work into it and for those injured patients who stood potentially to gain from it. However, looking at the bigger picture, perhaps it is for the best. It depends whether the waning enthusiasm for the NHS Redress Scheme among Ministers is due to belated realization of the cost implications; or because there has been a realization that they have got the plans wrong and are prepared to re-visit them and develop a more radical and fair alternative. You can make your own guess as to what the most likely reason is, but AvMA intends to exploit whatever opportunities which exist for getting an improved system.

Ironically, Wales, which has been given authority under the Act to develop its own scheme, seems to be pressing ahead and has also shown a much more enlightened approach. There is good engagement with stakeholders, including AvMA, in planning the Welsh scheme, and also a willingness to re-visit some of the principles underlying the scheme. For example, the Assembly has asked stakeholders whether an alternative test to the Bolam test should be used as the qualifying criteria and is looking at the possibility of applying their scheme to primary care. Both of these options were rejected in the Government's plans for England. It looks as if a Welsh scheme might actually be running by 2010.

In Scotland, AvMA has had an initial discussion with their Health Minister Nicola Sturgeon about a possible compensation scheme there (something the SNP were keen on in their manifesto). Discussions about this should be progressed in the context of the Scottish consultation on patients' rights, which should also address the question of redress for injured patients.

There will be a temptation to wait to see what happens in Wales. We hope we do not have to wait that long to see movement in England and Scotland. What is needed in England is the will to at least implement what modest improvements have been provided for, and ideally, to take the opportunity to improve on the plans by introducing more independence and/or using an alternative test to the Bolam test which was designed for the courts. AvMA and others have advocated an ‘avoidability test’ which would align consideration of eligibility for compensation with a focus on root causes and lessons from failures rather than on individual ‘negligence’ or ‘blame’. In Scotland, there is a unique opportunity to start with a fresh piece of paper and design a scheme which is radically fairer and fit for a system which is committed to patient safety and justice.