Monday, 30 January 2017


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The NHS is a beloved institution but mistakes are made and people die due to negligent error.

Proving that death has been caused by clinical negligence is difficult. Not all errors are negligent. A claimant has to establish the facts - sometimes having to analyse hundreds of pages of medical records - and then, with expert evidence, to persuade the court that no reasonably competent doctor or nurse would have done what was done in the particular case. That is not the end of it. The claimant must also prove that the death would have been avoided but for the negligence.

Lawyers acting for claimants generally get paid nothing for the hours of work they spend on a case if that claim is unsuccessful. Nothing.

If they do succeed in proving the claim for their client then they are entitled to recover their reasonable costs. Whatever they claim in terms of costs, they will recover only the costs that the NHS agrees are reasonable or the amount that the Court determines is reasonable. 

The Department of Health is now planning to cap the costs that claimant lawyers can recover. It has issued a consultation paper setting out proposed fixed fees. Claimants' lawyers will not be entitled to recover more than the fixed sums. These proposals only apply to claimants, not to the NHS. 

Unscrupulous Law Firms

Jeremy Hunt says that "unscrupulous law firms cream off excessive legal costs". That is why he seeks to introduce a fixed recoverable costs regime for clinical negligence claimants whose claims are for damages of between £1,000 and £25,000.

How can a law firm be characterised as unscrupulous if it only recovers costs that the NHS has agreed or that the court has ordered the NHS to pay?

Lawyer bating is a popular blood sport, but these proposals will have a further significant impact on bereaved families. They will restrict even further the ability of families of those who have died as a result of clinical negligence to hold those responsible to account. 

Patients' Deaths

Many of the most serious cases will come within this proposed scheme. Where the NHS is responsible for negligently causing the death of a patient, damages for bereavement are fixed by the government at a figure well below £25,000. And the government restricts the relatives who can claim such damages. So parents of a 19 years old are not entitled to bereavement damages. 

Suppose your child died as a result of negligent errors made by the NHS. Suppose they had no dependants. 

The government will not grant funding for you to have legal representation at the Inquest (funding is only available in very exceptional circumstances). The Department of Health will pay for the hospital to have legal representation, but not you, the one who has lost a child.

The prospect of a solicitor acting for you at the Inquest on the back of a win no fee agreement for a potential civil claim will be effectively eliminated by the proposed cap on costs - there is no provision for representation at an Inquest within the proposal. 

The availability of good legal representation and good expert advice to help you with any court claim will be severely curtailed if the recoverable costs are limited to £1200 for all experts and £7150 for the conduct of the whole claim (as proposed).

How do you effectively scrutinise the management and care afforded to your child? How do you hold those responsible to account?

The Consultation

The fact that it is the Department of Health that is proposing these restrictions makes them even harder to accept. To be blunt, these claims involve fatal errors for which, in effect, the D of H is responsible. And it is the D of H which now proposes to restrict families' abilities to prove that it is responsible.

There are many other ways of reducing the NHS's litigation bill, but the prospect of them being considered appears remote.

I am a clinical negligence lawyer although I now have very little involvement in claims up to £25,000. Does that disentitle me from expressing a view? That is for others to judge.

There is a chance to persuade the government to exclude claims arising out of patients' deaths from these proposals. The Consultation period closes on 1 May 2017.

For those who are looking for some guidance and tips on advocacy at Inquests, or who want to know what is involved in bringing a clinical negligence claim, please have a look at my video guides. Go to Learned Friend Helps With ....

Friday, 20 January 2017

Consent to Treatment - Guidelines from the Royal College of Surgeons

I was delighted to be asked by the Royal College of Surgeons to attend the press briefing at the launch of its new Guidance on Consent following the decision in Montgomery v Lanarkshire. I was also asked to write a short blog on the issue of consent which has been published today by the RCS and which is copied here.


Montgomery v Lanarkshire [2015] is a landmark judgment affecting the surgeon/patient relationship. The Supreme Court held that patients have the right to exercise autonomy over their own bodies and over the treatment they undergo. When making treatment choices it is the surgeon’s duty to advise and the patient’s right to decide.
This right of autonomy over treatment is a common law right. It does not come from the European Convention on Human Rights but has been created by British judges in cases beginning with Sidaway [1985]. In Montgomery the Supreme Court gave it a final and very decisive stamp of approval. The Court held:
 “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo … The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
The Royal College of Surgeon’s recent publication: Consent: Supported Decision-Making – A Guide to Good Practice, offers detailed and practical guidance on the implications of Montgomery and how surgeons should protect patients’ rights to autonomy.
The well-known Bolam test continues to apply to the delivery of treatment but the Courts take a different approach when scrutinising the process of obtaining informed consent.

The Patient’s Right to Autonomy
Important though this right to autonomy is, there are certain qualifications:
·         The surgeon only has to give information about the reasonable treatments available. Financial restraints may limit the available range of treatments and a surgeon is not obliged to explain the risks and benefits of all possible treatments, however unreasonable or irrational.
·         Only adult patients with the capacity to make decisions about their own treatment can exercise this right of autonomy.
·         In situations, such as emergencies, when it is not possible to obtain a patient’s informed consent it may be necessary for a surgeon to make treatment decisions.
·         In very rare cases, the “therapeutic exception” may apply such that a surgeon need not divulge information to a patient if to do so would be seriously detrimental to them.
·         Patients may still ask, “What would you do, doctor?” If a patient makes a clear choice to follow a surgeon’s recommendation and not to be informed of the risks and benefits of alternative treatments, that is an exercise of autonomy.
Although the Court’s decision reflected guidance on informed consent given by the GMC for a number of years, concerns have been raised about its impact on consultation times and a rise in litigation.

Consultation Times
If, as likely, more time is spent with patients, that is a price worth paying to protect the right of autonomy. The unpalatable alternative is that patients have treatment decisions made for them.
Hospital managers must allow sufficient time and resources for advice properly to be given and recorded. The current standard consent form is poor evidence of a full discussion and consent process. A better recording system is required. Smart use of written or filmed advice issued prior to consultations can assist.

If adequate resources are allocated and surgeons follow the College’s guidance, there ought to be a reduction in litigation. With the right of autonomy comes the responsibility on a fully informed patient to live with the consequences of their decisions. Many patients instruct solicitors because they feel they have been kept in the dark. Patients who have been fully informed and empowered to choose a particular treatment are more likely to accept complications when they arise.
If surgeons and managers do not change from the old ways to the new, then patients who would have avoided harm had they been fully informed may well seek compensation.
The Supreme Court has laid down the law: doctors advise, patients decide. This is the new contract. All healthcare professionals and managers, not just surgeons, should heed the College’s Guide to Good Practice.


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Tuesday, 10 January 2017


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