By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo
Image © Tero Vesalainen
By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo
Covid-19 negligence protocol
NHS Resolution, patient safety charity Action against Medical Accidents and the Society of Clinical Injury Lawyers agreed a Covid-19 Clinical Negligence Protocol to encourage claimant and defendant lawyers to behave positively during the pandemic.
The protocol is wide-ranging, covering:
On hearings and adjournments, the protocol states that NHS staff should not be required to do anything which affects frontline clinical care. ‘Equally, however, the Covid-19 situation should not be used as an excuse for avoidable delay in matters.’
The agreement will continue indefinitely until one of the parties gives notice to end it, and the provisions will be reviewed every eight weeks.
Read more: https://resolution.nhs.uk/wp-content/uploads/2020/08/COVID-19-Clinical-Negligence-.Protocol-2020.pdf
Mandatory changes to Statement of Truth wording for Expert Witnesses from 1st October 2020
The new wording which must now be used for the SoT on expert witness reports is below:
“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
Updated GMC guidance on decision making and consent applies from 9 November 2020
The GMC have updated their consent guidance (last updated in 2008) and have summarised their reasons for updating now below:
“Obtaining patients’ consent needn’t be a formal, time-consuming process. We’ve updated our guidance so it’s easier to apply in everyday practice.New features include:
Shared decision making and consent are fundamental to good medical practice. Getting this right can empower patients, which helps to improve health outcomes, patient experience and reduce complaints.”
Read more: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/decision-making-and-consent
Covid compensation claims from cancer patients
Clinical negligence lawyers are expecting a surge of claims involving delayed cancer diagnoses and treatment during the pandemic.
The journal Lancet Oncology recently predicted that delays in treatment since March could lead to 3,500 avoidable cancer deaths in England in the next five years.
Compensation payments are likely to be case-specific and will depend on whether the courts are prepared to allow such claims. Defendants may successfully argue it was a resources issue during the pandemic and that other services had to suffer.
Read more: https://www.thelancet.com/journals/lanonc/article/PIIS1470-2045(20)30388-0/fulltext#seccestitle150
Griffiths v TUI UK Ltd 2020 - not all holiday sickness claims are fraudulent
A pivotal civil court ruling could affect hundreds of holiday sickness claims cases in the pipeline, meaning that defendants will no longer be able toeasily find faults in expert evidence, as long as it is CPR Part 35 compliant, and should be compelled put forward their own expert evidence.
Mr Justice Martin Spencer overturned a county court judgment and awarded damages of £29,000 to claimant Peter Griffiths for gastric illness suffered after eating contaminated food at a Turkish hotel.
The court disapproved of the defendant’s tactic of not putting forward their own expert evidence. The tour operator is considering whether to appeal.
After the Court of Appeal’s 2017 judgment in Wood v Tui, it has been very difficult to prove food or drink was not of satisfactory quality, leading to a tendency to dismiss these claims in bulk. The recent Griffiths v TUI judgement may create a more even playing field and reduce the burden of proof on the claimant.
Read more: http://www.bailii.org/ew/cases/EWHC/QB/2020/2268.html
World Patient Safety Day
On 17 September 2020, the World Health Organization (WHO), international partners and all countries celebrated World Patient Safety Day.
World Patient Safety Day was created by the 72nd World Health Assembly, in May 2019, with the adoption of resolution WHA72.6 on ‘Global action on patient safety’, and an endorsement for the Day to be marked annually on 17 September.
The main objectives of World Patient Safety Day are to enhance global understanding of patient safety, increase public engagement in the safety of health care and promote global actions to enhance patient safety and reduce patient harm. The origin of the Day is firmly grounded in the fundamental principle of medicine – First, do no harm.
Health systems can only function with health workers, and a knowledgeable, skilled and motivated health workforce is critical for the provision of safe care to patients.
Objectives of World Patient Safety Day 2020:
Call for action
WHO urges all stakeholders to “Speak up for health worker safety!"
“The COVID-19 pandemic has highlighted the huge challenges health workers are currently facing globally. Working in stressful environments exacerbates safety risks for health workers, including being infected and contributing to outbreaks in the health care facility, having limited access or adherence to personal protective equipment and other infection prevention and control measures, and inducing errors which can potentially harm patients and health workers. In many countries, health workers are facing increased risks of infections, violence, accidents, stigma, illness and death.”
Read more: https://www.who.int/news-room/detail/17-09-2020-keep-health-workers-safe-to-keep-patients-safe-who
More support for those representing themselves in court
People representing themselves in court as litigants in person (LiPs) in civil matters will receive enhanced legal support following £3.1 million in additional funding from the Ministry of Justice announced in August.
In a joint initiative with the Access to Justice Foundation, funding will be provided to not for profit organisations across the country to provide free legal support - ensuring better advice and clear guidance for those without legal representation in court. As well as helping LiPs to understand legal processes and their rights within them, they will also be provided with practical support throughout the duration of proceedings.
This is part of the MOJ’s Legal Support Action Plan, which is helping people resolve legal problems at the earliest opportunity.
MOJ has already awarded over £500,000 to national charities through this grant, delivering a helpline that provides practical and emotional support to clients throughout the court process, web-based legal advice and an online hub that offers a greater range of solutions to legal problems, including advice for remote hearings.
Another £270,000 of the grant has been earmarked for emergency support to several organisations providing vital expert advice to litigants in person, ensuring they can continue to offer their services during the coronavirus pandemic.
Read more: https://www.gov.uk/government/news/more-support-for-those-representing-themselves-in-court
Clinical Negligence Scheme for Coronavirus (CNSC)
A new scheme was launched in April 2020 by NHS Resolution to meet liabilities arising from the special healthcare arrangements being put in place in response to the coronavirus pandemic.
The scheme, known as the Clinical Negligence Scheme for Coronavirus (CNSC), has been designed to respond to the new contracts being put in place for healthcare arrangements to respond to coronavirus such as those with the Independent Sector and organisations supporting testing arrangements. Membership of this new indemnity scheme is not required and cover will be provided automatically under the relevant contracts.
The scheme has been established under the new powers delivered under the Coronavirus Act 2020 and will indemnify healthcare providers for any clinical negligence liabilities which arise where existing indemnity arrangements (such as the Clinical Negligence Scheme for Trusts) do not apply. Where NHS Trusts are hosting special healthcare arrangements, for example the NHS Nightingale hospitals, then clinical negligence liabilities will becovered by CNST.
This cover is in addition to the arrangements already in place to indemnify healthcare workers for the NHS work they already do, through state indemnity schemes operated by NHS Resolution on behalf of the Secretary of State for Health and Social Care which will continue.
Any general queries concerning the arrangements should be directed by email to CNSC@resolution.nhs.uk.
Claims numbers fall during the pandemic, but volumes expected to surge
The coronavirus pandemic has seriously reduced the number of civil justice claims.
Statistics published by the Ministry of Justice, covering the second quarter from April to June, show a significant decrease in civil justice activity linked to Covid-19.
From April to June, personal injury claims were down 42% to 16,000, and judgments in general fell by 78%. The vast majority (86%) of judgments that were made were default judgments.
The MoJ said that during the response to the pandemic, administrative and judicial resources were a ‘significant challenge’, with suspension of court operations leading to unprecedented falls in volumes. There was also a significant impact on timeliness of civil justice: the mean time taken for small claims to go to trial was 41.8 weeks – 5.2 weeks longer than in the second quarter of 2019. Multi and fast track claims took 61.9 weeks to reach trial, which was an increase of almost three weeks.
The MoJ said: ‘As society and the economy begins to recover from the impact of Covid-19, it is expected that claims volumes will return to historic trend levels, and may even temporarily exceed the pre-covid-19 volumes as the backlog of claims is processed.
The annual Medico-Legal Conference in London goes virtual
The second annual Medico-Legal Conference took place remotely on 21st October 2020, due to ongoing Covid19 restrictions. Delegate feedback has confirmed that the event was a resounding success, despite the challenges of the remote format, and we hope to be welcoming delegates back to a more traditional event next time.
The keynote address was given by Helen Vernon, Chief Executive of NHS Resolution, who outlined the growing importance of alternative dispute resolution in healthcare cases. The rest of the first morning session followed this theme with excellent presentations from Andrea Barnes of Normanton Chambers/Trust Mediation and Professor Dominic Regan.
The second morning session covered the hot topic of Reflection and Remediation: A Weapon to be Used Against Doctors? From clinical negligence experts Stephen Hooper, of Hempsons and Shannett Thompson, of Kingsley Napley.
Consent for Operative Obstetrics was thoroughly discussed by three experts in this field: Mr Mark Waterstone, Consultant in Obstetrics & Gynaecology, Dr David Levy, Consultant Anaesthetist, and Dr Gary Hartnoll, Consultant Neonatologist. They highlighted the growing importance of consent in all areas of medical practice, and consent was also covered in the specialty of Ophthalmology in the afternoon session by Mr Amar Alwitry.
The first session of the afternoon was perhaps the most popular among the medical delegates, covering Top Tips for Medical Experts from Warren Collins, from Penningtons Manches Cooper and A Lawyer’s Wish List for Their Medico-Legal Experts by Flora McCabe, Head of Healthcare Claims, Lockton LLP and Angus Piper, Barrister.
Ruth Kelliher, from Digby Brown updated us with a Scottish Case Update.
Another emotive hot topic was covered in Life and Death Treatment of Children – Who Decides? By Katie Gollop QC, Serjeant’s Inn.
The final presentation considered another topic of increasing importance: AI and Robotics in Healthcare: the Legal and Regulatory Landscape by Peter Rudd- Clarke, Legal Director, and Emma Kislingbury of Reynolds Porter Chamberlain (RPC).
The day was a fascinating overview of current topics of importance to both medical and law experts in the medico-legal field.
Book Medico-Legal Conference 2021 now: www.medicolegalconference.com
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