Friday, 29 August 2014

The Wrong Kind of Injury

In his superb book The Rule of Law, Thomas Bingham wrote that the core of the principle of the rule of law was that "all persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made..."

The importance of the rule of law applies just as much to civil litigation as it does to the criminal justice system or administrative law.

Under the law of tort, and more particularly the law of negligence, an individual who suffers injury due to the negligence of a person or body who could or should have foreseen that their negligence might harm the other, is entitled, subject to some exceptional cases, to compensation for the injury. The purpose of the compensation is to put the individual in the position they would have been in had the negligence not occurred, so far as money is able to do that.

Of course public policy considerations have had a large part to play in the development of the rules of the law of negligence, for example in the area of compensation for so-called nervous shock. Immunity from suit has been afforded to various groups at different times. But, if the rule of law has any meaning in the field of civil claims for compensation then the established principles of entitlement and liability  should apply equally to all, be they rich or poor, powerful or weak, a public authority or a private individual. The law should not deprive a claimant of compensation which he would otherwise be entitled to receive simply because it suits the financial interests of the defendant. That is a principle of considerable importance. But it is a principle under attack.

Various organisations and individuals of influence have, for varying reasons, been arguing for changes in the law of negligence to prevent certain individuals who suffer particular kinds of injury from securing compensation or to have their claims limited. There would be one law for some and a different law for others, depending on the nature of the injury suffered.

Aviva has argued for there to be no compensation for "short-term" whiplash injuries suffered in road traffic accidents. Instead, rehabilitation would be offered. This, it claims, could reduce annual motor insurance premiums by an average of £50. In jest I tweeted Aviva suggesting that premiums could be further reduced if it also restricted liability for injuries to other body parts. Aviva favourited my tweet. The fact that I am not sure if the favouriting was ironic or not is in itself rather telling. Whiplash to the neck is the wrong sort of injury - if you suffer a broken leg in a road traffic accident and recover within two months you will be entitled to compensation. If you suffer an injured neck for two months you will not be entitled to compensation. Why? Because it suits the financial interests of motor insurers and motorists.

In the field of clinical negligence Dr Christine Tomkins, Chief Executive of the MDU, writing in its annual report for 2013 says:

"We continued to draw attention to the unsustainable cost of clinical damages
awards. Patients who are negligently damaged must be compensated, but
the cost of compensation must be affordable and fair for all parties. With
claims inflation outstripping other measures of inflation every year, the cost
of clinical negligence claims is doubling approximately every seven years. Even
if the current economic climate picks up, society cannot afford to pay such
overly inflated claims indefinitely. With an election planned for May 2015 it is
unlikely there will be any radical change in the short term. But the cost of claims
must be addressed before it becomes a full blown crisis. On your behalf we
continue to pursue a package of reforms, including caps on future care costs and
loss of earnings awards."

The MDU proposes a cap of three times national average earnings for loss of earnings claims in clinical negligence cases. Pace Kerry Underwood but I think the proposal is to limit annual not total loss of earnings to three times the national average. Nevertheless the MDU is advocating a different law for individuals suffering clinical negligence injury which disables them from working, than for other injured claimants - they have suffered the wrong kind of injury. A different rule of compensation would apply to a doctor negligently injured at work than to a patient negligently injured by the doctor.

Lord Saatchi's Medical Innovation Bill seeks to prevent patients from obtaining compensation when injured as a result of (what would now be found to be) negligent medical treatment. The existing law of negligence would apply if a patient suffers injury due to a negligent diagnosis or a surgical error but not if the injury were due a decision to treat. Again the law should discriminate between different kinds of injury in service of some other perceived greater good. At its second reading in the House of Lords there was much debate about what the Bill would achieve and its impact on the medical profession, but only Lord Brennan spoke about the fact that the Bill would introduce an targeted immunity from liability for one sector of society - doctors making treatment decisions.

Negligence law is not immutable and I would not dispute that compensation for negligently caused injuries must be and be seen to be reasonable. But whilst each of these proposals is intended to produce a desirable gain: lower premiums, lower taxes, more medical innovation; it should at least be noted that the cost would be not only to individuals deprived of compensation but to the principle that the law should be consistent and apply equally to all, including motor insurers and doctors. These proposals are examples of special pleading by influential sectors of society.

There are more headline grabbing assaults on the rule of law - for example proposed legislation to allow the government to pick and choose by which rulings of the European Court of Human Rights it will abide or Boris Johnson's proposal to reverse the presumption of innocence for British citizens who travel to Syria or Iran - but they should not allow us to ignore the increasing tendency to regard as dispensable the principle that the law of negligence should apply equally to us all.

Thursday, 7 August 2014

The Launch of the NHSLA Mediation Service

The National Health Service Litigation Authority has announced a new mediation service, in conjunction with the well-respected mediation provider, CEDR.

When Mediation Works

From July 2014 the NHSLA will offer a Mediation Service  in all "suitable" cases involving a fatality or elderly care. This will be a without prejudice and confidential process. A number of mediators from a  panel will be offered to the aggrieved party who will select one. It is expected that parties may well have lawyers in attendance but it is "not obligatory".

I have limited experience of mediation in clinical negligence cases and understand from at least one experienced mediator that clinical negligence mediation is not at all common. Of the five mediations I have participated in, I would say that four resulted in satisfactory outcomes. At two of those, I am sure that a similar outcome could have been achieved at a Joint Settlement Meeting (aka Round Table Meeting). The fifth failed, probably because of a poor choice of mediator. Nevertheless, I am convinced that there is potential for a much greater role for mediation in resolving clinical disputes.

There are obvious advantages to mediation. It can lead to an early resolution of a grievance and a potential or actual claim with considerable saving in costs. It can provide outcomes beyond financial recompense which may be of significant value to an aggrieved party. It can remove or alleviate the stresses on all parties and witnesses which litigation and trials can cause. A successful mediation will leave both sides feeling that a fair and just result has been achieved through an open process. In clinical negligence cases there may be a burning need for the patient or the bereaved to receive an explanation and acknowledgement. In litigation an adversarial approach and the rarity of trials, mean that opportunities for direct communication or acknowledgement are few and far between. In cases where a child has died, compensatory damages may be very low. The same may be true in some elderly care cases. The award of money by itself may leave parties with a sense that justice has not been done. Mediation may provide a better means of resolution than litigation in such cases, particularly if it involves a face to face acknowledgement that mistakes were made.

There are however risks to aggrieved parties inherent in the proposal. Parties should be fully aware of their rights to claim through the courts and their reasonable expectations from any potential claim, before they engage in mediation. In many cases they cannot know what those prospects are without seeing expert evidence and/or obtaining specialist legal advice. It is hoped that the NHSLA will bear in mind the likely costs involved in parties obtaining evidence and advice when they offer mediation and that they will be prepared to contemplate bearing those costs as part of a mediated resolution. Even if parties say that they are not raising a grievance or complaint because of "the money" they still ought to know what their potential entitlements are before agreeing to resolve their grievance at mediation. Thus the circumstances in which mediation is offered are important.

I also trust that the offer of mediation will not be misused as a stick to beat litigants with on costs. The refusal to engage in mediation can be a relevant factor when determining costs at the conclusion of litigation. The courts are keen to encourage the use of mediation. However, a party might reasonably feel that they need to investigate and take advice on their potential claims before committing to a mediation process. It would be unfortunate if the mediation service were used to seek a tactical advantage on costs in the litigation.

If an aggrieved party is to enter into mediation in full knowledge of their entitlements, then not only will they need to have had an opportunity to take medical and legal expert advice, but they will need to know the full facts relevant to their grievance. Thus, an offer of mediation must go hand in hand with candour on the part of all parties. Openness by the NHS about mistakes made and about evidence it has in its possession or control relevant to the case in question, is a necessary pre-requisite to any meaningful and fair mediation.

Under the scheme it appears to be up to the NHSLA to determine which cases are "suitable" for mediation and to control who is on the panel of mediators. I am sure that the panel of CEDR mediators would be truly independent, but equally see no reason why the NHSLA should not be open to agreeing to other mediators proposed by other parties. That may be necessary in some cases if patients or their families are to have full confidence in the mediation process.

It is worth noting that the existence of this scheme does not prevent an aggrieved party or the NHSLA from proposing mediation in other kinds of clinical negligence disputes, or even in fatal and elderly cases which the NHSLA does not deem to be suitable for mediation under this scheme.

It is not a fair criticism of this scheme to contend that it is simply a costs-saving measure. Provided that the scheme affords an opportunity to deliver fair and satisfactory outcomes for patients and healthcare providers alike, it would surely be an added benefit if it also reduces costs. Notwithstanding some reservations, it is welcome news that the NHSLA is willing to engage in alternative dispute resolution, albeit in a limited number of cases. If this scheme can be made to work then it might then be extended to a wider range of cases. Perhaps it might be adopted or copied by the MPS and MDU. This could be the beginning of a significant shift towards ADR in clinical negligence.