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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 same test, and standard, of fault will apply as for clinical negligence claims.
Current system
The typical clinical negligence claim does not, of course, begin with the delivery of a writ to an NHS trust. A potential claimant will often have first written a letter of complaint. The trust is likely to have responded to the complaint in detail. Sometimes, the trust provides an acceptable explanation or apology, which brings an end to the matter, as in the example below:
A woman who was a practising...