More than a decade on from devolution there are now four different health services operating in the UK. Some suggest that the emerging differences - such as free prescriptions - are "breeding envy" amongst the other UK NHS users. Other reports paint a different picture of a Welsh NHS which is underperforming in areas such as waiting lists and productivity.
In Wales we have also seen some fundamental changes in the way that patient’s concerns about the health service are handled. The NHS Redress Measure, passed in 2008, was a significant landmark in Welsh legal history as the Welsh Government’s first measure to reach the statute book and regulations (supported by guidance) came into the force on 1 April 2011.
The new arrangements, known as Putting Things Right - introduce one system which will deal with both a complaint and a legal claim in cases where compensation is modest - less than £25,000. It replaces the 2003 Welsh NHS complaints procedure and, in the short term, will co-exist alongside the Welsh Fast Track Scheme for cases worth £15,000 and under - The Speedy Resolution Scheme.
The arrangements apply to the NHS and GPs, in so far as they relate to the receiving, handling and investigation of concerns. The provisions in relation to payment of compensation (where investigation determines that there is or may be a qualifying liability in tort) do not apply to GPs.
The process
It is intended that there will be a single point of entry for submission of all concerns. These concerns will then be graded and the parameters of the investigation to be carried out by the NHS will be set with the involvement of the person who notified the concern.
A concern must be notified within 12 months of the incident which is the subject of the concern or the date of knowledge of the person notifying the concern. Concerns can be investigated outside of that time limit provided certain criteria are met and provided it is not three years or more after the incident.
The NHS is responsible for the investigation of its own actions. Under Regulation 23 the NHS determines the parameters of the investigation, with the involvement of the person who notified the concern and the appropriate method of investigating. This could include obtaining independent medical or other advice. If the responsible body is notified of a concern which includes an allegation that harm has or may have been caused then the NHS must consider whether a qualifying liability exists or may exist.
Redress
If harm has been caused to a patient and investigation has declared that a qualifying liability exists or may exist, the NHS has a duty to consider Redress. The Redress arrangements are set out in part six of the regulations which make provision for the NHS to offer Redress for a qualifying liability by way of financial compensation in which the sum does not exceed £25,000. This includes general damages, special damages, any amount due and owing to the CRU and the cost of any remedial treatment.
A note of caution
Under the Redress part of the regulations, legal advice is available to the patient free of charge provided that this is sought from firms of solicitors who have a solicitor who is a member of the Law Society or AvMA Clinical Negligence Panels.
It is regularly the case that solicitors provide support and advice to patients whilst they complain about their NHS services under the NHS complaints procedure. It is frequently a requirement of Before The Event (BTE) Insurance and public funding that the patient pursue the complaints procedure before the claim is covered. Firms without a panel member should be concerned about costs recovery implications in supporting Welsh patients under these arrangements. It is not always possible at the outset in clinical negligence cases to make an assessment of the value of the case.
All new complaints against the NHS (whatever their value) will be subject to the regulations and if it transpires, after investigation of the concern, that the damages are modest and fall within the parameters of Redress then firms may have difficulty in recovering all of their accrued costs. Firms without panel members will not even be able to advise on any offers of compensation if the case reaches that point.
