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News - April 2012
NHSLA: New Chief Executive
28 April 2012
New Chief Executive at the NHS Litigation Authority
Catherine Dixon has joined the NHS Litigation Authority as its new Chief Executive. She was previously General Counsel and Company Secretary at the NSPCC, working as part of the Executive Team leading this high profile charity through a period of significant change.
Catherine has recent experience and knowledge of the health sector, having worked as a Director of Vancouver Coastal Health Authority in Canada and as Commercial Director at Bupa Care Services. She is a solicitor and has an MBA.
Catherine Dixon said :
“I am delighted to join the NHS Litigation Authority, an organisation which makes a major contribution to patient safety. The NHSLA already provides a unique and highly professional service to NHS Trusts in England and to the broader NHS. I am joining at an exciting time of change during which there are opportunities to further improve the value of the NHSLA’s services to its members."
LASPO - Come on! Keep up!
25 April 2012
LASPO - Come on! Keep up!
After going to Commons yesterday now going back to the Lords! There is an interesting Government amendment on mesothelioma (distinguishing it from other industrial respiratory disease - at last common sense) was agreed. The two other Lords amendments were reversed
Here are the Commons disagreements with the Lords amendments:
April 25, 2012.
LASPO - Poor quality Lords debate
25 April 2012
LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL
AND CLINICAL NEGLIGENCE
Poor quality Lords debate – reform needed
Democracy deserves better, justice deserves better!
By Geoffrey Hall Barrister
Editor, Medical Negligence
House of Lords reform is on the political agenda. Medical Negligence has been following the progress in Parliament of the LASPO Bill as it affects clinical negligence. Most of us know little about most things so we are not in a position to assess the quality of Lords debates – but with due modesty Medical Negligence knows a bit about clinical negligence and so we are in a position to assess the performance of the House of Lords. What a revelation it has been.
The striking feature about the Lords debates on clinical negligence was the poor quality of argument and the many errors of fact which betrayed a lack of understanding on basic issues. Peer after peer insisted that clinical negligence litigation would not be possible without legal aid even though 82 per cent of cases are funded by means other than legal aid. Well, with due respect, their Lordships were merely following the judiciary! The triumph of propaganda over evidence...
Another notable gaffe was the confusion between clinical negligence (a breach of duty causing injury of which there are 10,000 allegations made each year, roughly half sustainable) and adverse clinical events (over a million a year) – what point in having a debate if you don’t even know what you are talking about!
One peer insisted that after the event insurance premium was payable by the losing claimant. Medical Negligence is not aware of a single insurance product where this applies.
One peer suggested to a Conservative former Lord Chancellor that when he oversaw the system the additional liabilities were not payable by the successful claimant - wrong - it was the Labour Government which passed the Access to Justice Act 1999 which introduced the recoverability of the success fee and the ATE premium, providing risk free litigation.
Another peer wrote in the national press “After-the-event insurance will be abolished” by the proposed reforms – what rubbish! Recoverability of the premium will generally be abolished but not the ATE insurance itself.
It is well established that the difference in cost between a self-insured system and a private insurance system is the profit element. One peer argued that (an assumed) profit element of 25% in a private system was going to cost three times as much! This peer seemed also to confuse the scope of legal aid with the eligibility for legal aid – that retaining legal aid funding for expert reports meant that there was no need for recoverability of the ATE premium in relation to the funding of expert reports.
Thankfully, LASPO will become law in the form intended by the Government - without the interventions of this bunch of unelected, uninformed busybodies: what a waste of time and taxpayers’ money. Happily such interventions now belong in the dustbin of history, not the statute book. It could be quite funny – but it is actually frightening because this is about primary legislation. Democracy deserves better, justice deserves better.
For information about Medical Negligence please contact the Editor: firstname.lastname@example.org.
LASPO: In Lords
24 April 2012
LOSPA back in Lords:
Lord Cormack put down a motion to reinstate retaining legal aid for children in clinical negligence cases (Motion H1 - amendment 172B)
Baroness Grey-Thompson put down a motion to reinstate retaining legal aid for children in legal proceedings including clinical negligence (Motion J1 - amendment 171B)
Lord Lloyd's proposal for legal aid to be retained in respect of expert reports does not seem to be subject of any proposal for reinstatement
Both motions went to division - the Government had comfortable wins in each - the LASPO Bill has passed through both Parliamentary chambers with the Government’s proposals on clinical negligence and legal aid intact. Legal aid is retained expressly only for clinical negligence cases “which caused a neurological injury to an individual (“V”) as a result of which V is severely disabled”. Of 8 division there were 3 Government defeats - so it is back to the Commons.
We understand that the quality of debate left much to be desired: Mesothelioma was used to argue the case for "respiratory disease or illness arising from industrial exposure to harmful substances". April 24.
24 April 2012
NHS Survey: The NHS Inpatients Survey is being published today. CQC is not publishing any press release in relation to this but the results will be published on their website. The acute and specialist trusts involved should already have received their individual results including their benchmarking report. The following documents will be made available on the CQC website and can be found here: http://www.cqc.org.uk/public/reports-surveys-and-reviews/surveys/inpatient-survey-2011.
· The national summary
· Comparative tables, containing national results for the 2011 and 2010 surveys
· Scores out of 10 for each trust, alongside a banding of ‘better’, ‘worse’ or ‘about the same’, in the CQC organisation search tool.
· A benchmark report for each trust. April 24.
18 April 2012
The Care Quality Commission (CQC) published a further 18 reports from a targeted programme of 150 unannounced inspections of hospitals and care homes that care for people with learning disabilities. The programme is looking at whether people experience safe and appropriate care, treatment and support and whether they are protected from abuse. A national report into the findings of the programme will be published later this year. These 18 inspections covered locations that provided a range of services including assessment and treatment, rehabilitation and longer term care. Inspections were focused on two outcomes relating to the government’s essential standards of quality and safety: the care and welfare of people who use services, and safeguarding people who use services from abuse. Major concerns were identified against both outcomes at Harkstead Barns, and a major and a moderate concern were identified at Shear Meadow. The batch contains eight NHS, four independent health care and six adult social care locations. CQC also published interviews with experts by experience on our web site. Two people with experience of care and two family carers talk about their contributions the inspections and about what being involved in the programme has meant to them. April 4.
LOSPA: The final debate
16 April 2012
LOSPA: The final debates:
We understand that the Commons disagrees with numerous Lords amendments including 170, 171, 172:
170 is Lord Lloyd's amendments concerning expert reports in clinical negligence remaining within scope.
171 is Baroness Grey-Thompson's amendment concerning proceedings involving children including clinical negligence.
172 is Lord Cormack's amendment retaining clinical negligence within scope of legal aid for child cases.
LASPO - Underwriting the cost of expert reports
15 April 2012
Legal Aid, Sentencing and Punishment of Offenders Bill
Underwriting the cost of expert reports for clinical negligence cases
House of Commons, 17 April 2012: Consideration of Schedule 1 paragraph 3 (as amended by House of Lords)
By Andy Hogan, Managing Director, ClientCover
The cost to the public of expert reports for clinical negligence cases is approximately the same whether they are underwritten by legal aid or after the event (“ATE”) insurance; the difference in cost is the profit element of ATE insurance. Schedule 1 paragraph 3 of the Legal Aid, Sentencing and Punishment of Offenders Bill (“LASPO”) proposes that the obtaining of expert reports should remain within the scope of civil legal aid. Lord Lloyd, who introduced this proposal, accepts that the profit element is 25 per cent; however, he calculates that the additional cost of underwriting expert reports by ATE insurance rather than by legal aid to be 200 per cent. ClientCover does not accept the 200 per cent figure. This figure is disputed also by the Government. ClientCover considers that the proposed funding of expert reports in clinical negligence cases by legal aid should be deleted when the Bill returns to the House of Commons on 17 April 2012.
The LASPO Bill includes provisions concerning the scope of civil legal aid. Schedule 1 paragraph 3 proposes that the obtaining of expert reports in clinical negligence cases will remain within the scope of civil legal aid for those eligible.
The costs of expert reports in successful claims whether funded by legal aid or conditional fee agreements (“CFAs”) are paid by the NHS. The costs of expert reports in unsuccessful legally aided claims are paid for by legal aid. The court has stated:
"...legal aid helps those who lose cases, not those who win them. Legal aid makes out and out grants to those who lose cases. It only makes loans to those who win them." (Davies (Joseph Owen) v Eli Lilly & Co  3 All ER 94 at page 97, Sir John Donaldson MR).
In effect, legal aid does not fund expert reports but underwrites their cost should the claim fail. Similar considerations apply to expert reports in claims which are funded by CFAs with ATE insurance in place – the ATE insurance funds the expert reports in unsuccessful claims. The premiums are not payable by unsuccessful claimants so the cost of the expert reports in unsuccessful claims is paid for by the premiums of successful claims. The premium includes also a profit element.
Commentary on proposed funding of expert reports by legal aid
Lord Lloyd stated:
“However, there is a far graver objection to Clause 45 than that, which is cost, as I mentioned at the outset. The cost of providing legal aid for expert reports is £6 million. That is the one figure on which, happily, everybody seems to be agreed. What, then, is the projected cost of implementing Clause 45? Clearly, one must make some assumptions. In an average case one can assume that the cost of the reports will be £5,000. In a simple case, it will be less; in a difficult case, it will be a great deal more. Let us assume that claimants in general have a 50 per cent chance of success in clinical negligence cases. If the insurer is to break even in the course of a year, it follows that he must charge not less than a £5,000 premium for £5,000 of cover. However, to that he must add 25 per cent for his overhead expenses and profit and 6 per cent to cover the cost of insurance premium tax. Therefore, the minimum premium for £5,000 of cover will be £6,265. We know that in 2010-11, the National Health Service settled some 5,400 cases. If one again assumes that the funding in half those cases was by way of ATE cover, one can work out by a process of simple arithmetic that the cost would have been 2,700 cases times £6,265: that is, £18 million. That is almost exactly three times the legal aid cost of £6 million.”(16 January 2012; column 365)
Lord Lloyd’s calculations are derived from real figures and assumed figures. This calculation was repeated in the debate on 7 March 2012 at column 1824 when the proposal was agreed by the House of Lords. Lord Lloyd’s calculations are difficult to understand. The simple point is that the difference in cost between ATE insurance and legal aid of underwriting expert reports is the profit element for ATE insurance. Lord Lloyd accepts that the profit element is 25 per cent. However, he calculates that the underwriting cost by ATE insurance rather than legal aid is 200 per cent more expensive.
ClientCover considers that the proposed funding by legal aid of expert reports in clinical negligence cases is misconceived; the proposal should be deleted from the Bill when it is reviewed by the House of Commons (“ping pong”) on 17 April 2012.
Lord Lloyd’s calculation that the cost of underwriting expert reports by ATE insurance rather than legal aid is three times greater is difficult to understand as the difference in cost reflects the profit element of the ATE insurance. Lord Lloyd accepts that this is 25 per cent. ClientCover considers that the proposed funding of expert reports by legal aid should be deleted when the Bill returns to the House of Commons on 17 April 2012.
LASPO Latest - Those figures again!
09 April 2012
Legal Aid, Sentencing and Punishment of Offenders Bill returns to House of Commons for consideration of House of Lords amendments, 17 April 2012
Will the Lords amendments on clinical negligence and legal aid be reversed?
Has Lord Lloyd gaffed?
By Geoffrey Hall, Barrister and Editor of Medical Negligence [7 April 2012]
The controversial Legal Aid, Sentencing and Punishment of Offenders Bill returns to the House of Commons after a mauling rather than a tweaking in the House of Lords. There is a Government concession that legal aid is to be retained for neurological injury baby cases. There are amendments (where the Lords divided and Government was defeated) which retain legal aid for children and expert reports in clinical negligence cases. Will these amendments be reversed in the Commons?
The proposal for retaining legal aid for expert reports is interesting because it is based on disputed figures; the amendment was tabled by Lord Lloyd who stated:
“However, there is a far graver objection to Clause 45 than that, which is cost, as I mentioned at the outset. The cost of providing legal aid for expert reports is £6 million. That is the one figure on which, happily, everybody seems to be agreed. What, then, is the projected cost of implementing Clause 45? Clearly, one must make some assumptions. In an average case one can assume that the cost of the reports will be £5,000. In a simple case, it will be less; in a difficult case, it will be a great deal more. Let us assume that claimants in general have a 50 per cent chance of success in clinical negligence cases. If the insurer is to break even in the course of a year, it follows that he must charge not less than a £5,000 premium for £5,000 of cover.
However, to that he must add 25 per cent for his overhead expenses and profit and 6 per cent to cover the cost of insurance premium tax. Therefore, the minimum premium for £5,000 of cover will be £6,265. We know that in 2010-11, the National Health Service settled some 5,400 cases. If one again assumes that the funding in half those cases was by way of ATE cover, one can work out by a process of simple arithmetic that the cost would have been 2,700 cases times £6,265: that is, £18 million. That is almost exactly three times the legal aid cost of £6 million.”(16 January 2012; column 365)
The cost of ATE should be calculated at £6,625 (ie £5,000 x 1.25 x 1.06 = £6,625), not £6,265.
These calculations are disputed by the Government. It is important that any legislation is passed, any policy is formulated on evidence and the correct premise. Are Lord Lloyd’s calculations sound?
Using the same assumptions of Lord Lloyd’s calculation applied to legally aided cases, the number of legally aided cases which fail is 2,700 (half of 5,400 settlements where the success rate is 50 per cent); the cost of funding reports by legal aid is therefore 2,700 times £5,000: that is, £13,500,000 – rather different to his £6 million figure.
The appropriate figure for ATE is actually £6,250 times 2,700 (tax is cost neutral); that is, £16,875,000. The difference in cost of underwriting between ATE and legal aid is £3,375,000 according to Lord Lloyd’s assumptions.
It is a pity the Government did not refute Lord Lloyd’s calculation with this simple calculation!
The 25 per cent extra cost is a price worth paying because the real evidence (not assumption) shows a privatised system has more rigorous screening processes – the evidence shows that the success rate of cases funded by CFA/ATE is higher than legal aid. Moreover, the same ground rules of litigation should apply to everyone.
Medical Negligence considers that the proposal to fund expert reports by legal aid ought to be reversed by the House of Commons because it is based on an incorrect premise and disputed figures.
Comparing statistics can be tricky – but there are some rules. With due respect to Lord Lloyd, there are at least two elementary principles on analysing data: (1) assumptions should be applied to both datasets and not just one; and, (2) apples should be compared with apples, and oranges should be compared with oranges. It is not valid to compare real figures (legal aid cost) with figures derived from a simplistic model based on questionable assumptions (ATE costs).
Lord Beecham said:
“...the noble and learned Lord, Lord Lloyd, who, after all, is one of the most distinguished Members of your Lordships' House...” (14 March 2012, column 366)
So how do the rest rate?