Following extensive debate and lobbying, the NHS Redress Act 2006 received Royal Assent last November and now provides the framework under which the Secretary of State for Health will set up an NHS redress scheme to come into force in or after April 2008. A second period of consultation on the scheme is taking place during 2007.

To recap, the objective of the redress scheme was to enable claimants to obtain redress more easily for their injuries and losses incurred as a result of substandard medical care without necessarily resorting to litigation.

It was also intended to encourage a more open culture within the medical profession, discourage the practice of defensive medicine and limit the perceived growth of a litigation culture. A financial cap of £20,000 has been placed on the scheme, meaning that patients with ‘qualifying claims’ will only be offered up to a maximum of £20,000 in damages. A patient who requires further medical treatment will be offered it on the NHS - the cost of future private medical care will not be covered.

Significant concern remains in relation to the independence of the scheme, indeed this has probably been the biggest contention from the outset. The scheme is to be overseen by the NHS Litigation Authority, the body which will decide upon liability and the value of the claim as well as make any settlement offers. The NHS Litigation Authority is a Special Health Authority (part of the NHS) set up to deal with negligence claims against the NHS. The scheme is, therefore, not independent and many have commented that the NHS will be acting as judge, juror and assessor. This is unlikely to be an attractive proposition for many claimants who may have understandably already lost confidence in the NHS.

There is, at least, now the opportunity for claimants to have independent legal advice (unfortunately limited to advice in relation to instructing an expert and when a settlement offer is put forward) and to be able to jointly instruct a medical expert, with those costs being met under the scheme.

The scheme will be limited to cases involving secondary care, ie hospital care, as opposed to primary care (eg from a GP, optician or chiropodist). Technically, it is not compulsory and a claimant can decide to reject a settlement offer or at any time pursue his or her claim through the courts.

However, in reality when considering whether a claimant is financially eligible for public funding (Legal Aid), the Legal Services Commission is likely to have regard to the reasonableness of a claimant not pursuing an application under the scheme or having rejected an offer made under it.

This could well leave claimants in a difficult position and possibly with lack of funding if either the NHS Litigation Authority has rejected or simply made an unrealistic settlement offer. Furthermore, there is currently no right of appeal. If a claimant does settle under the scheme, he or she waives any right to bring future legal proceedings.

For many claimants, litigation is a very time consuming and stressful process, which is not undertaken lightly. Therefore, in principle, a redress scheme promoting easier access to justice is welcomed. However, lack of independence, limited access to legal advice and the possibility of claims being undervalued, remains hugely concerning. No doubt patient groups, charities and those affected by the scheme will continue to lobby hard during the second consultation procedure to try and influence the final detail of the scheme.

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