the columnist

Published: 25/09/2003, Volume II3, No. 5874 Page 19

There has been a surprising lack of media interest in the chief medical officer's plans for reforming the way clinical negligence in the NHS is dealt with.

Professor Sir Liam Donaldson's report, Making Amends, is out for consultation for another three weeks. The stated aims of the reforms are spot-on - fairer, quicker, less bureaucratic investigation and responses to people affected by negligent treatment, encompassing explanations, apologies and financial compensation when warranted.

However, the net effect of the 19 recommendations would be a serious diminution of the civil rights of NHS patients, shortchanging some of the most vulnerable people injured through no fault of their own and undermining public confidence in the NHS.

The proposed NHS redress scheme has four elements - an investigation of the incident and the harm done, an explanation for the patient, a package of care for them and some payment for pain and suffering, expenses and care that the NHS cannot provide. Payments up to£30,000 would be made by a new national body set up to administer the scheme - but only if an internal investigation by the NHS trust decides it is merited.

Patients might be given a 'small amount' of money for legal advice on whether to accept an offer.

Does anyone seriously believe that a scheme run by the NHS itself, with no independent element such as medical expert witnesses, and no independent specialist representation for the patient, will readily own up to its failures and compensate people fairly? The NHS track record on complaints and in defending cases where negligence is ultimately proven or admitted suggests otherwise.

Families of children brain-damaged at birth would also be able to take advantage of the scheme which would, similarly, give them a managed care package, monthly payments for care that could not be provided by the NHS (capped at£100,000 a year) and a payment for pain, suffering and loss of amenity (capped at£50,000).

While this might provide quicker, easier access to a degree of compensation for a larger number of families, it would also deprive some of the most needy of the compensation they need by the application of arbitrary limits. Surely the NHS should be offering good services to all brain-damaged children whether or not they have had reason to seek redress?

The report makes much of the redress scheme being voluntary.

However, how real would the right to litigate be if, as suggested, legal aid is restricted to cases that have already been through the scheme? Patients would also be presented with a Hobson's choice if a recommendation is accepted to force victims of NHS negligence to come back to the NHS for their care package - even if they have litigated successfully. This would leave NHS patients with fewer civil rights than people injured by negligence in almost any other setting - private healthcare, road accidents, or accidents at work.

There is still time to build on the many good aspects of the recommendations and eradicate the less thought-through by responding to the consultation.