The aim should be a healthy mother and a healthy baby!
Almost everyday of my professional life, I see the very challenging consequences of mistakes made during childbirth and the consequences for the child, the mother, their family and for the health professionals involved.
And so two stories that have broken in the news in the past 24 hours are of particular concern.
The first is that pregnant women are apparently to be handed personal budgets of £3,000 by the NHS to buy the services of private midwives under plans to cut the number of hospital births (a link to the story in the @guardian is here: http://www.theguardian.com/society/2016/feb/23/national-maternity-review-calls-for-personal-care-budgets).
The second story is that half of hospital maternity units are not safe and mistrust between doctors and midwives is harming women and babies. This is according to a nationwide review ordered after 11 babies and a mother died at Morecambe Bay NHS Trust (a link to the Morecambe Bay Investigation reports is here: https://www.gov.uk/government/organisations/morecambe-bay-investigation).
At Morecambe Bay, turf wars between doctors and midwives were said to be promoting an agenda of normal birth “at all costs” and this led to failings being covered up. Dysfunctional relationships among staff are said to be damaging care elsewhere as well.
It is also suggested that pay-outs of compensation will be made on a “no fault” basis to parents in relation to stillbirths.
Shouldn’t there should be some joined up thinking here?
- The fundamental aim for NHS maternity services must be that there should be a healthy mother and a healthy baby. Other issues should fade into insignificance, including where and how the baby is born.
- There should be a strong focus on breaking down the turf wars said to exist between midwives and obstetricians. Women are entitled to full information about the relative benefits and risks of hospital and home birth. This advice should not be “contaminated” by mistrust and negative feelings between the two professions as I fear it often is now. After all, both have the same aim – healthy mothers and healthy babies.
- I cannot see how providing midwives with a financial incentive to encourage home birth will help ensure mothers are provided with full and objective advice on the risks involved. Of course this must include explaining the likely consequences of delay in getting medical help if there is a need to transfer to hospital with a serious complication for mother or baby. Unlikely but it happens!
- Payment of compensation for stillbirth on a “no fault” basis is, no doubt, well-intentioned but completely misses the point in my view.
I have yet to meet a bereaved parent whose aim in court proceedings is to obtain damages. Their intentions are to firstly find out exactly why their baby died and secondly that lessons should be learnt as a result.
A civil claim is a means to fully investigate what happened.
Damages are not the point. Once again, the Government appears to be failing expectant mothers and their babies.
You might think that 18th Century British politics is not an obvious starting point for an analysis of the current Tory Government’s Trade Union Bill.
Here’s why I think it is.
David Cameron and George Osborne have taken inspiration from the Whig Supremacy the period 1715 – 1760 when the Whigs took total control of Government and during which time they successfully purged their political opponents from all major positions in Government, the armed forces, the Church and the legal system. Whig leaders such as Robert Walpole, and his protégé, Henry Pelham, set about entrenching themselves in power and a key tool was the Septennial Act, when they extended the Parliamentary term from three years to seven.
Not since Walpole have we seen a Government so determined to entrench themselves in power. Today, three hundred years later, we have a Prime Minister intent upon doing just that EVEL, the boundary review, and the Trade Union Bill are clear examples. They each seek, albeit shrouded with different intent, to undermine the ability of the Labour Party to win future elections.
The Trade Union Bill is a clear attack on the ability of Trade Unions to organise and represent their members. It seeks to undermine the right to strike a key tenet of our legal system. But it also, seeks to make it much harder for Trade Unions to fund the Labour Party, or indeed any Party of their choosing.
This is an attack on democracy. It is a clear attempt by the Government to undermine the electoral prospects of Her Majesty’s Opposition in the House of Lords debate on 11th January, the Tory Lord Balfe hit the nail on the head when he said: “We should think carefully about our responsibilities to democracy, which actually go further than our responsibilities to one or other side of the House”
In 2015, Jeremy Hunt said that there were probably about 1,000 “avoidable” deaths in the NHS every month. So there are about 12,000 deaths every year and this figure does not begin to include serious injuries to patients that fall short of being fatal!
There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes. There are currently various ways to deal with untoward incidents that are far from perfect. However, even this flawed system looks to be under threat from current proposals by the government to introduce fixed fees for all claims worth up to £250,000.
Ways of investigating injuries and deaths in the NHS include:
- Criminal prosecution of clinicians perceived to have failed in their duties to the patient.
My view, for what it’s worth, is that this approach inhibits openness and produces a culture of covering up mistakes. It is generally unhelpful and I think it should be avoided in the absence ofevidence suggesting malicious intent
- Adopt the approach used in the airline industry. This means that openness and discussion are mandated and the aim is to put measures in place to minimise the chances of the mistake happening again
In my view this is the most constructive approach and would be the best system to strive for within the NHS.
- Full investigation via the current civil court system. This is a critically important safeguard underpinning the interests of patients. It allows investigation into incidents to be undertaken by independent judges. Investigations in the civil courts are rigorous and can shine a light into cases where healthcare is of dubious quality to find out what went wrong and enable lessons to be learnt. Indeed there is a track record of such investigations uncovering abuse and incompetence where it has occurred.
However this is about to change.
The use of the civil courts to investigate incidents within the NHS will be effectively prevented in the majority of cases by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once an arbitrary fixed limit is reached.
The proposed limit of £250,000 will cover most injuries and deaths involving children, the elderly and disabled. Only the wealthy and those with maximum severity injury such as total paralysis and brain damage would be likely to fall outside this limit.
Only this week, Chris Ham, chief executive of the King’s Fund think tank, is quoted as saying that recent NHS Guidance “brings to an abrupt end the post Mid Staffs era when leaders of the NHS organisations saw failure to ensure safe levels of staffing as more serious than failure to balance budgets. Financial control is king”.
So it is more important than ever that the civil courts should continue to exercise a central role in safeguarding the interests of the vulnerable in our society and this must not be taken away by the proposed government reforms.
I read Lord Justice Jackson’s Lecture note from 28th January hoping to find the voice of an independent judiciary dispassionately appraising the case for and against fixed costs and making recommendations.
I was however disappointed. Not just because I disagree with him, but also because he has not employed the measured reasoning and discipline of thought we expect from members of our Judiciary.
Why does he favour fixed costs?
His view is that :-
- High litigation costs are a problem
- If costs prevent access to justice this undermines the rule of law
- Hourly rate renumeration rewards inefficiency
- Fast track costs in personal injury/IP Enterprise court appears to be working
- Litigants in non PI need access to justice at proportionate cost
- The profession is willing to accept fixed costs rather than have more costs budgeting
- Politicians and Judges want it
- It provides certainty
- We have enough experience from costs budgeting and fixed costs now
Why was I disappointed?
He showed no interest in the impact of the 2013 changes he brought in
No mention was made of the need to review the success or otherwise of the numerous mechanisms by which multi track or non PI costs have been sought to be controlled since 1st April 2013:
We had costs budgeting, changes to the overriding objective to prevent disproportionate cost, encouragement to mediate , changes to part 36 , recoverability of success fees, ATE premiums and assessment of costs (to name but a few).
All of these changes aimed to prevent disproportionate costs and to make justice more efficient.
Unfortunately, lack of resources and planning when they were introduced meant some of the changes had the reverse effect. This was not the fault of the procedural judges but of poor planning and the failure to put proper resources in place .
As a result there was additional delay and expense – for example, it was not uncommon for litigation to be brought to a halt whilst parties waited 6-9 months for a date for a costs budgeting hearing.
Simularly, some poor planning meant that when costs budgeting was implemented the forms did not initially work and the rules were not clear.
For a man whose report was so instrumental in starting ‘the big bang’ of reform which started in April 2013 he seems remarkably disinterested in how his recommendations have bedded in.
He did not look at the root cause of High litigation costs
He seems for example to ignore the role of government in ensuring that court fees have gone up extortionately since 2013. He makes no mention that those changes alone put justice far beyond the reach of the average member of the public where they have to bear that burden.
For example , the issue fee for a grievously injured child who needs proceedings to be issued used to be £1200 . Now , for that same case the cost is £10,000.
He did not look at whether the current regime might be capable of working
The regime he ushered in has been condemned without analysis.
The raft of measures introduced in 2013 gave the courts power to regulate and control court costs. There is in fact plenty of evidence of the courts exercising their muscle to reduce costs to a proportionate level. in some cases disallowing costs completely.
As high value cases can take 2 -3 years to resolve the effect of costs budgeting on these cases cannot be properly assessed because they have not been in place for long enough for their effect to be seen.
Perhaps better resourcing of the courts would allow for better costs management? Has anyone considered that more Judges and better infrastructure in the court system to allow administration of costs management might be a more effective way of achieving the aim of justice at proportionate cost? Shouldn’t they?
Significantly the regime that Lord Jackson compares us to in New Zealand allocates twice as much to the court infrastructure than we do in the UK (SEE OECD (2013), “What makes civil justice effective?”, OECD Economics Department Policy Notes, No. 18 June 2013.)
No consideration is given to the conduct of the parties in driving up the costs of litigation and the effect of better costs management systems might have on such behaviours.
Most significantly he does not consider whether fixed costs provide more effective access to justice than the current system
There is considerable value in a CFA allowing an individual access to justice.
Legal aid for high value personal injury and Clinical negligence has all but disappeared. CFA’s were the replacement.
For all their faults CFA’s allow the lawyer and their client to tailor what is necessary to be done in order to investigate and litigate a case. This is then assessed by the court who only allow recoverability of what they regard as proportionate and necessary to do justice in the case.
To ensure they are reasonable litigation costs are made subject to pre-emptive costs budgeting, proportionality and assessment as to what was reasonably incurred at the conclusion of the case.
The current system also to a large extent has in built protection that prevents one party from acting unreasonably. Unreasonable conduct by one party should surely in some circumstances justify the costs of the other party to defeat such conduct (see CPR 44.2 (4) a).
Penalising unreasonableness is part of being just in the minds of most people. To embrace a system which rewards unreasonableness will undermine the rule of law.
Does a fixed costs regime work? Can one size really fit all?
Lord Jackson proposes fixed costs should be extended to all areas of litigation because they have worked for lower value Personal injury and in the IP Enterprise court.
This assumes that a fixed costs regime is suitable for all areas of law, values and types of claim. It is unquestionable however that different areas of law have different demands evidentially.
Different types of Claimant and Defendants also need different support from the legal framework if justice is to be done.
The problem with fixed costs is that they treat all cases as if they were the same. Case however are not the same. Some cases are considerably more complicated than others. Complexity does not necessarily run with value. Where it is not possible to complete litigation within the fixed limit of recoverability either someone has to fund the shortfall or the case must be given up.
Where such a situation occurs, a multinational company is better equipped to fund a shortfall in a fixed fee justice system than a widow on benefits. Are we to treat them both the same?
Should there not be some consideration of the question of whether Justice will still be achieved?
Fixed costs bolster the inequality in arms between Claimant and Defendant that already exists between individual citizens and large organisations. Defendants will be able to prevaricate and act unreasonably knowing that they are using up the fixed costs entitlement of the Claimant and thereby pushing it into the iniquitous zone of lawyer only or client only costs.
Imagine for example explaining to the parents of a baby killed by suspected negligence that ‘we have reached the fixed costs limit but the investigation is incomplete because it is complicated. Your case gets only low recoverable fixed costs because it isn’t worth much so now you will have to pay.’ Would you consider that justice in action?
Overview
We know that Judges would rather not be troubled by the issue of assessing costs or costs budgeting under the current regime. Lawyers too do not enjoy them. Explaining how the CFA regime works can be difficult. Simpler systems undoubtedly exist.
These however are not arguments for fixed costs to be introduced.
Capital punishment has virtues of being definite, cost effective and easy to explain but we have decided that ultimately it does not fit with our definition of Criminal Justice or our values.
The primary concern in Civil Litigation should be to do justice in a system where unreasonable costs can be controlled. In Clinical Negligence there is a strong public interest in maintaining high standards of care and accountability which has been achieved through the availability of damages in the civil courts.
Fixed costs imposes cheap and cheerful ‘poundland justice’ and strangle justice by paying no heed to either the issues, complexity nor the conduct of the parties.
It is difficult to see how the hard and fast nature of fixed costs help justice to be achieved in Civil Litigation. The same costs will be allowed irrespective of the complexity of the case or the conduct of the parties. It is like setting the meter on a taxi journey before knowing how far you are going to go or how difficult the journey will be.
Accountability for mistakes and the government proposals for fixed costs for civil claims.
I read about the collapse of the criminal case against a NHS Trust involving the tragic death of teacher Frances Cappuccini last week with great sadness for her partner and family.
However there is another aspect to consider, namely whether criminal prosecution is the best way to hold doctors and hospitals to account. Is it in the public interest to have doctors and the medical profession living in fear of criminal prosecution? Will this encourage open consideration of mistakes and an opportunity to learn from them? I think not.
Jeremy Hunt said in 2015 that there were probably about 1,000 “avoidable” deaths in the NHS every month. That is about 12,000 deaths every year and does not even begin to include serious injuries to patients that fall short of being fatal!
There is a clear public interest in maintaining high standards of care in the NHS and accountability for mistakes but does criminal prosecution inhibit or encourage openness about mistakes? The airline industry has a much more constructive approach to mistakes when they happen – open discussion is mandated and the opportunity is taken to learn from what happened with a view to preventing similar incidents in the future.
It seems to me that criminal prosecution in medical cases is usually inappropriate except in really exceptional cases. Instead, the NHS should adopt a similar system to the airline industry and also encourage accountability and regulation of standards by the availability of proper investigation of claims through the civil court system.
Unfortunately, proper investigation via the current civil court system into the deaths and injuries of children, elderly and disabled people will be effectively prevented by the government’s plan to introduce a “fixed costs” regime for clinical negligence cases worth up to £250,000 from October 2016. Under this, further costs are barred once a fixed limit is reached.
So the future seems to be that mistakes will continue to happen and accountability to injured patents and bereaved families will be seriously damaged.