CHANGES TO THE NHS COMPLAINTS SYSTEM
After the 31 March 2009, the Healthcare Commission will no longer be responsible for reviewing patients unresolved complaints about the NHS. The Government is introducing a new, simplified process that involves just two stages. The new system will put more emphasis on Trusts resolving complaints at a local level.
Earlier this year the Healthcare Commission reported that it upheld 30% of all complaints last year (2008) which was up from 20% the previous year and that 17% of cases were sent back to the individual Trusts because their approach to handling the complaints was thought to be insufficient.
The new two stage process can be summarised as follows:-
- In the first instance, the patient should complain to the Trust involved. This is what is called Local Resolution. The patient normally should complain about their treatment within 6 months of their treatment or within 6 months of becoming aware that they had cause to complain and it should be within 12 months of the treatment itself. Trusts do have discretion to consider complaints outside this period provided there are good reasons why the patient did not complain earlier. The Trust should respond to the patient’s complaint within 25 days.
- If a patient is not satisfied with the response they receive from the Trust they can ask the Parliamentary & Health Service Ombudsman (the Ombudsman) to review their complaint. The Ombudsman is an independent body which has been established by the Government to promote improvements in the healthcare provision. The Ombudsman hopes to resolve the majority of these complaints (they have given themselves a target of 80%) within 40 days which is a marked improvement on the old system.
Existing complaints up until the 31 March 2009 which are being dealt with by the Healthcare Commission will be forwarded onto the Ombudsman for review if they are unable to resolve them before the deadline at the end of March.
We at S J Edney welcome these reforms and hope that they will speed up the process. In our experience, cases which have been referred to the Healthcare Commission for investigation have taken a lengthy period to investigate which often impacts on the amount of time patients have before they can take legal advice on whether they have a clinical negligence claim against the Trust.
CLINICAL NEGLIGENCE LAWYERS CRITICISED – AGAIN!
After Jack Straw’s unhelpful comments at last year’s Labour party conference about patients who sue the NHS and in particular, their lawyers fees – the Sunday Times in a 2 page article on the 22 March 2009 had a rant against lawyer’s fees alleging that the NHS is used by them as a “cash cow”. They further maintained that their fees were often in excess of what the patient’s themselves recovered by way of damages.
This article was based very much on what they had been told by the NHS and their defence organisation (the NHS Litigation Authority). One NHS lawyer was quoted as saying that Claimant’s lawyers costs were too high and could be seen as a “buccaneering attack on the funds of the NHS”.
This was an unhelpful and biased article and we are concerned that it may put off genuine Claimants in the future who are seeking redress for avoidable injuries which they suffered as patients of the NHS. We can only repeat those points which we made in a previous issue (32) when we attempted to rebut the criticisms made by Jack Straw. The NHS (and the Sunday Times) would be better off concentrating their efforts on improving clinical safety within the NHS which in turn would reduce the number of claims made against it. What is overlooked by these type of articles is that a doctor can only be successfully sued if their conduct has fallen short of the standard of their own medical peers. Early admissions of liability and sensible offers of settlement, would ensure that the majority of these cases would not be litigated which would significantly reduce the level of costs payable to both parties lawyers. In our experience, the NHS Litigation Authority and GPs defence organisations are very slow to admit their members’ failings.
The Sunday Times article coincided with a number of press reports commenting on the appalling standards of care at the Stafford Hospital which may have contributed to the deaths of at least 400 patients and the poor standards of care appears to have been repeatedly missed by both the mangers and regulators. This came to light following an investigation by the Healthcare Commission into the death rates at the Mid Staffordshire NHS Foundation Trust.
The report catalogued a number of failings including:-
- lack of staff – receptionists with no clinical training were assessing A & E patients and were responsible for checking them in the waiting room
- patients in pain – patients suffered without treatment for hours
- the target culture – the staff of the hospital said that there was “pressure, pressure, pressure” on them to meet the 4 hour A & E waiting time targets. This involved on occasions more seriously ill patients being left when the staff treated patients with minor ailments instead so that the target could be met
- poor equipment – lack of training on cardiac monitors meant that some where switched off. The resuscitation trolley was not checked for 7 months with a number of items missing and drugs out of date
- superbug outbreaks – there was a rise in cases of C-Diff in 2006 suggesting cross infection between patients
- staff criticism – in a staff survey in 2006 only 27% of the staff said they would be happy with the standard of care provided compared with 42% nationally
It is hoped that these failings have now been addressed by the Trust and those patients (and the families of those who may have died) who have suffered as a consequence of this poor care will be compensated accordingly. In our view, this case is a good example why there is a need for specialist clinical negligence lawyers.
WORK RELATED STRESS
Work related stress is now a reality of modern life and large payouts to employees are not uncommon.
Since Victorian times, Judges have ruled that employers must take reasonable care for the safety of their staff and provide them with a safe working environment. The law had only been applied to the physical consequences of an employer’s neglect such as an arm broken through defective machinery or a fall on a slippery floor.
The landmark case of Walker -v- Northumberland County Council in 1994 changed all this. When the 59 year old Social Worker John Walker sued his bosses, claiming that chronic overwork had caused two breakdowns that eventually made him give up work, Mr Justice Coleman ruled that he was entitled to compensation agreed between the parties at £175,000.00.
“Whereas the law has developed almost exclusively in cases involving physical injury as distinct from injury to mental health, there is no reason why risk of psychiatric damage should be excluded from the scope of an employer’s duty of care” the Judge said.
It is not however enough to establish liability. An employer must have been alerted to the probability that staff were under undue stress. They must have been warned and ignored the warning.
What kind of thing should warn an employer? Complaints, persistent lateness or mistakes by a normally efficient worker, mood swings and uncharacteristic and unexplained time off. If Managers do their job well, they should be able to recognise the tell-tail signs of stress and ensure that steps are taken by the company to minimise the risk of that employee suffering an injury to their mental health.
SLIPS OR TRIPS AT WORK
In our experience, slips and trips in the workplace are becoming more common with many of our clients suffering serious injuries as a result of this type of accident.
On the basis that prevention is better than cure there are a number of measures which an employer can taken to reduce the risk of injury. Health & Safety legislation makes an employer responsible for the welfare of their staff and visitors which includes preventing potential slips and trips.
Firstly, an employer should conduct a risk assessment. Look at whether staff clean as they go, whether you have spillage controls in place and if staff are trained to remove obstructions or clean spillages from the floor or dispose of rubbish in a safe manner.
Encourage all employees to ensure that their work area is kept tidy and make them responsible rather than leaving it to someone else.
Produce measures that prevent contamination from spreading into other areas – for example, place drip trays under machines and racking; use appropriate mats at entrances and so on.
It is also sensible to look at improving the lighting and ensuring there are sufficient signs where possible to warn employees of hazardous situations to help reduce the risk of them having an accident.
Employers should also regularly check the condition of the floors for holes, uneven floors, loose carpets and unmarked changes in floor levels that may need to be improved and made safe.
Secondly, once a risk assessment has been prepared – employers need to take steps to action the recommendations and ensure that they are being followed by their employees. This will eliminate the risks of injury and thereby reduce the chances of any personal injury claim being made but more importantly avoid employees having to take time off work on sick leave which will have a detrimental effect on the business especially during these difficult economic times.
LAWYERS WORST DRIVERS
Lawyers are the least law-abiding drivers, with one in five having traffic convictions, a survey has found. Doctors, teachers, police officers and the clergy are also more likely to have points on their licences than the average driver. The survey of 1.6 million policies taken out with the insurance company Admiral found that the most law-abiding motorists were hairdressers and beauticians.