Healthcare Features
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- Written by: Sean Clement
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A panel of experts has backed a Scottish Government plan that could see patients who have suffered loss, injury or damage as a result of healthcare treatment compensated without having to take the NHS to court.
The No-Fault Compensation Review Group – set up in 2009 and led by law and medical ethics expert Professor Sheila McLean – has called for the current adversarial court system to be scrapped in favour of no-fault compensation.
Under the new system, which would be similar to the ones in place in countries such as Sweden and New Zealand, claimants would have to prove that the harm was caused by treatment. However, they would not be required to prove negligence.
The review group identified a number of benefits of a no-fault system, including:
- Fair and adequate compensation for harm suffered
- Quicker rehabilitation, which would no longer need to wait until legal action has been completed
- Broader eligibility criteria than the current system
- Greater scope for the NHS to learn from mistakes so that care can be improved
- More efficient use of public time and money
- Wider access to justice for patients, with the removal of the need to pay legal fees.
The review group also suggested that more patients could have claims resolved under such a system than currently achieve resolution through the courts – “potentially for around the same costs as the NHS currently pays in compensation and legal fees”.
Scottish Health Secretary Nicola Sturgeon said: "The vast majority of the care delivered in our NHS is of the highest quality, but it is important that people who have suffered as a result of clinical mistakes should have some form of redress.
"Nevertheless, it's in no-one's best interests to have that redress delayed because a compensation claim can take years to go through the courts and nor is it in anyone's interests to have precious NHS resources spent on expensive legal fees.”
Accepting the review group’s recommendations, Sturgeon described no-fault compensation as a sensible way to ensure people who have been affected are compensated without tying up either patients or the health service in years of litigation.
Professor McLean said: "It is important that the aim of any compensation scheme should be to facilitate access to justice, provide appropriate compensation for injured patients and ensure proper and timely adjudication of claims.
"The members of the Review Group were clear that the current system is not meeting the needs of patients, and will welcome the Scottish Government announcement."
The Scottish government will now investigate how such a scheme would work in practice, including further analysis of any cost implications.
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The Welsh Assembly Government has given councils in Wales until the end of the year to come up with proposals to develop regional social care commissioning and delivery as part of a radical package of measures aimed at tackling duplication between Welsh local authorities.
The measure is amongst the proposals contained in the Assembly's new framework for social care –Sustainable Social Services for Wales – A Framework for Action.
The framework document said: “We have made a considerable investment in building an understanding of how this approach can be made a reality. We now expect delivery and we will expect regulators and inspectors to work together to assess progress in delivering integrated services.”
Welsh ministers will seek powers to enforce the changes if councils do not come up with satisfactory proposals by the end of the year.
The measures announced by the Assembly also include the establishment of a National Adoption Agency for Wales – to replace the 23 agencies in Wales at present – and the creation of a national outline contract for care homes to improve consistency of services. The document also recommends the introduction of portable assessments of need, so that users will not need to be re-assessed if they move between different council areas.
The Assembly Government intends to establish a National Outcomes Framework, a set of focused, published, high level indicators, and to require local authorities to involve the users of social care more in the design of services. It will also encourage the creation and development of social enterprises in the provision of social care.
Other proposed measures include:
- Reducing the number of Local Safeguarding Children Boards and cutting back on the detailed guidance sent out by government.
- Rolling out Integrated Family Support Teams and re-ablement services across Wales.
- Changing the approach to target setting and the type of guidance issued, with providers and commissioners of services becoming accountable for quality and safety to allow for a better focused and streamlined regulation and inspection.
- Supporting social workers and social care workers to apply their own professional judgement.
The assembly government warned the changes were needed with the system facing "real and unsustainable increases in demand". Key to this, it added, will be to “ensure that services are centred around the citizen. Users and their carers will have a much stronger voice and greater control over services. Services will be built around people – not around organisations.”
Describing the process as "a recasting of the legislative framework for social services in Wales", the Deputy Minister for Social Services, Gwenda Thomas, said: “This is a visionary statement on the future of our social services for the next decade. We have used this opportunity to think carefully about the small number of big changes that we need to focus on to make a positive impact and renew social services in Wales.
“Social services must become sustainable but sustainability means much more than funding. It will require more fundamental changes than simply becoming smarter at what we already do. We need to focus on what is really important and ensure that we are all working to the same ends by securing more efficient and effective ways to deliver services through greater collaboration and integration. This paper gives us the means to do that.”
The document is available for download at the following link: SustainableSocialServicesforWales
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The government has announced plans to reform the regulatory framework governing the 1.4m people who work in the health and social care professions, in a bid to make it proportionate and effective.
Justifying the move, the government said the current system was “increasingly complex and expensive, and requires continual government intervention to keep it up to date”.
The Department of Health said any new regime should impose the least possible costs and complexity, while maintaining safety and confidence for patients, service users, carers and the wider public.
It insisted that the vast majority of those working in health and social care were “committed individuals with a strong sense of professionalism who aspire to deliver the highest standards”.
But the Department added that it was vital that swift action was taken – whether by employers or national regulatory bodies – where there was poor practice or behaviour that presented a risk to the public.
Under the DH’s Enabling Excellence proposals:
- Power will be devolved to the regulators, “while enhancing accountability and sustaining effective national safeguards where necessary”
- Growth and costs of the regulatory system will be constrained "at a time when health and social work professionals are facing pay constraints"
- A system of assured voluntary registration will be developed as a more proportionate approach to ensuring high standards in the workforce, and
- The regulatory structure will be simplified.
The government said that devolving powers to regulators would give them greater freedom to define their own processes without approval from the Privy Council or the Department of Health. At the moment every time the rules are changed – in relation to registration, investigation and complaints – the government has to get involved.
Voluntary assured registration meanwhile was “intended to improve standards and drive up the quality of care without imposing the costs of mandatory regulation”.
The Council for Healthcare Regulatory Excellence (CHRE) will be asked to set the standards for registers and accredit organisations meeting its standards. “That way, the public and employers would be able to easily identify whether a worker belongs to a register that sets robust standards for those registered,” the DH said.
The Department added that it intended to incentivise employers to use workers on voluntary registers. “In future, local authority commissioners could give preference to providers using workers on voluntary registers,” it suggested. “This could be taken into account in the ‘excellence rating’ that the CQC will shortly be consulting on.”
The government insisted that its abolition of the General Social Care Council was part of a wider programme of social care reform which would deliver a more independent model of regulation and strengthen the social work profession.
The CHRE is also to become more independent and self-funding.
Presenting Enabling Excellence to Parliament, Health Secretary Andrew Lansley said: “Regulation of healthcare workers and social workers makes an important contribution to safeguarding the public, including vulnerable adults and children. But we need an approach to professional regulation that is proportionate and effective.
“The changes we are progressing through the Health and Social Care Bill will give greater independence to those who work in healthcare across the UK and social care in England, to their employers and to the professional regulatory bodies. This will be balanced by more effective accountability in how they exercise that freedom.”
The government has tasked the Law Commission with running the reform project. It is expected to report in 2014 with a view to new legislative proposals being consulted on before the end of the current Parliament.
Frances Patterson QC, Law Commissioner for Public Law, said: “The existing legislative landscape has developed piecemeal over the years, leaving the law fragmented, difficult to access and inefficient. The legal framework is an impediment to the freedom that the regulators need to improve their performance, cost effectiveness and service to the public, rather than an enhancement.”
Patterson added that the Law Commission would aim to modernise and simplify the law to create a single over-arching structure within which the regulators can work.
The Health Secretary also announced that herbal medicine practitioners would be regulated from April 2012.
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A team of commercial, legal and technical advisers is to run the rule over a PFI contract for a hospital in Romford in a Treasury pilot aimed at identifying the scope for potential savings on similar accommodation-based projects.
The government expects the pilot – the first in a series of reviews of large contracts with more than £100m remaining contract value – to make specific recommendations on how to make projects more efficient, flexible and cost effective. Ministers also want it to provide a replicable process that can be rolled out to other relevant contracts.
Contract managers, the government said, would be encouraged to consider the potential for savings in areas such as:
- Optimising contract and asset management
- Validating insurance cost/gain sharing arrangements, and
- Identifying where additional costs are being incurred for unnecessary service levels.
The PFI contract for the Queen’s Hospital in Romford was signed in 2004 and has a remaining contract value of £835m.
Launching the review, Lord Sassoon, Commercial Secretary to the Treasury, said the lessons learned would be used to deliver savings across the full portfolio of PFI contracts. The public sector is expected to spend more than £8bn on such contracts in 2011/12.
Lord Sassoon said: “PFI contracts are not immune from savings. The launch of this pilot, along with our next round of engagement with industry on a PFI code of conduct, indicates our determination to drive out costs while ensuring front line services are maintained.
“It is critical that government urgently addresses every opportunity for savings across all contracts, no matter how complex they may be. We owe it to the taxpayer to eliminate wasteful practice and gold plating in contracts.”
The reviews are being launched in response to recommendations contained in Sir Philip Green’s Efficiency Review, which was published in October 2010.
Health Minister Simon Burns said: “The focus must be to find efficiency gains and savings within the PFI contract itself, allowing the quality of care and patients themselves to remain the priority.”
The announcement follows the Treasury’s publication last month of draft guidance on how to make savings in operational PFI contracts. This guidance will be updated following completion of the Romford pilot.