For professionals

Association of Personal Injury Lawyers
Fighting for justice for injured people
Campaigning to put shattered lives back on track

About this blog

I am Deborah Evans, APIL's Chief Executive Officer. I shall be using this blog to keep you informed about campaining and political work carried out by APIL.

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Patient safety and the NHS
Hartwell Jane | 27 Mar 2015

The NHS has taken centre stage as one of the major political issues of the forthcoming General Election in May. This is hardly surprising given its cost: the NHS budget for 2014/15 is £113bn. For that the taxpayer gets a (largely) nationalised health service (mainly) free at the point of delivery. The NHS employs 1.7 million people (1) and treats more than 1 million people every 36 hours. People make mistakes in all walks of life and when you have 1.7 million people dealing with the complex health care issues of another million patients on a daily basis, avoidable mistakes are inevitable.

Lawyers are often criticised for facilitating claims for compensation against the NHS but as a senior MP remarked to me last week, “if you didn’t sue them they would never learn”!  

As a patient safety lawyer and during my 10 years as a member and president of APIL’s executive committee I have constantly had to defend the rights of patients to pursue claims where they have suffered injury from negligent medical treatment. But where a treating doctor or nurse provides care that is so poor that no responsible medical practitioner can justify or defend it then surely it is right that they should be entitled to some form of redress? There may be debates to be had about the appropriate levels of damages and costs for such claims but the principle of redress must be a fundamental one.

The NHS’ own figures suggest there are a million reported patient safety incidents each year and of these over 60,000 adverse incidents result in significant harm to patients. Yet last year the NHSLA (which deals with claims against the NHS) received fewer than 12,000 claims (2). This suggests that far from there being a “compensation culture”, as is often alleged, what we really have is a significant access to justice issue.

The key for the NHS is to learn from the errors it makes and implement systems and protocols to ensure those mistakes are not repeated. That way patient safety is improved and fewer patients are harmed and need to consider bringing a claim. Yet the NHS seems reluctant to truly embrace an open approach to patient safety and accountability.

Since the start of October we have had the much heralded “duty of candour” which imposes statutory, contractual and professional responsibilities on medical staff and hospital Trusts to be open when things go wrong, to provide an explanation as to why they did go wrong and, where appropriate, to make an apology to the patient and/or their family. This is a welcome start but we will need to see if it will really make a difference in practice. We have already seen a potential dilution of the duty in terms of how it is likely to be enforced by the regulator. The Care Quality Commission (CQC) has stated “We expect to use the new regulations on candour to confirm or encourage good practice through the ratings we give, rather than to enforce them directly”

The complaints system is also unsatisfactory with a recent finding that more than 40 per cent of NHS investigations into patient complaints are not good enough, according to a review by the office of the Health Service Ombudsman.

So it is, perhaps, no surprise that patients sometimes feel they have to turn to lawyers to ensure that what has happened to them doesn’t happen to anyone else and to try to ensure that the NHS learns from its mistakes.

[1] Making it the 5th largest employer in the world (behind McDonalds, Walmart, the Chinese military and at number one the US Department of Defence which employs 3.2 million people)

[2] In 2013/14, the NHSLA received 11,945 claims (including potential claims) under its clinical negligence schemes.

APIL: a change for the better
Hartwell Jane | 18 Mar 2015

In the daily fight for our clients’ rights, and with insurers and government over policy, it is very easy to forget just how much we have achieved together in APIL over the last 25 years. In 1990:

  •     there was no ‘cards on the table’ approach to allow early evaluation of litigation risk;
  •      split trials were rare;
  •      a lump sum damages payment was all that a judge could award;
  •      rehabilitation was patchy and outside the litigation process anyway; and
  •     ‘no win, no fee’ was unlawful for those many injured people ineligible for legal aid.

This has all changed for the better, but perhaps the most significant development in helping us to achieve the goal of doing the very best we can to put the injured person’s life back on track back is rehabilitation. APIL’s Think Rehab campaign was a vital contribution to driving this up the agenda.

An example of the real difference this approach can make is the case of a child who sustained a severe brain injury in a road traffic accident when he was 4 years old. He is now approaching his 19th birthday. The nature of his injury is such that the doctors have advised they are not yet in a position to safely evaluate the long term effect so as to allow the court to finally conclude the claim.  But during the last 15 years, with full co-operation from the Motor Insurance Bureau, we have been able to provide him with significant rehabilitation and support, including continuous high quality case management, a placement at a specialist school and currently a trial of independent living.  This collaborative approach has meant he has a much better chance of living an independent adult life than otherwise would have been the case. And the compensation award will be carefully matched to the long term effects of his injury and to his life expectation.

As well as active cooperation with insurers in respect of rehabilitation, APIL members have continued to work closely with the voluntary sector. Their provision of services for the injured (whether or not they have a claim for compensation) has improved vastly over recent years. Many charities now offer frontline care, support and rehabilitation services and in some areas actually take the burden away from the NHS where it may lack expertise and funding to deliver specialist support. It is of course down to the hard work and unwavering commitment of the staff and volunteers that is key to the success of these charities, but APIL members should also be proud of their contribution. Whether raising funds in bike rides and marathons, serving as trustees or volunteers, sponsoring posts or carrying out pro-bono legal work, it is support that is undoubtedly needed, particularly during times of austerity that has seen a greater reliance on the voluntary sector. There for the injured,  long after an accident has taken place or a claim has been settled, or where no legal claim can be brought, charities will continue to remain a vital resource for people following injury. 

25 years and counting...
Hartwell Jane | 02 Mar 2015
I have been a member of APIL since it came into existence. I had the privilege of being its president in 2004 to 2005. As with all presidents, I gave a speech at the annual conference. Two of the themes in that speech are still very relevant today. The first relates to the image of lawyers who practice personal injury law. The general view of them is not at all good. This is a great pity. All of the personal injury lawyers I know who represent injured people, are thoroughly committed to the work that they do. Securing a good outcome for such individuals is an absolute priority for them. I only hope that in the future, a much more positive view of personal injury lawyers is established.
The second concerns rehabilitation. APIL began its rehabilitation campaign in 2003. It continues to put forward the proposition that in every case consideration has to be given as to how the personal injury claims process can be used in order to ensure that there is maximum recovery for the injured person. This is the approach of most personal injury lawyers and I sincerely hope that, in the not too distant future, such an approach becomes all-embracing and that all of those involved in conducting claims will see this as the top priority.
Here’s to APIL's next 25 years.

Catastrophic pressure sore injuries cost NHS almost £3 million
Hartwell Jane | 06 Feb 2015

Since posting my blog about APIL’s pressure ulcer campaign last week, I have seen the shocking results of a case which illustrates exactly why our campaign to prevent these needless injuries is so important.

In 2008 a 61-year-old woman was admitted to hospital with a rare inflammatory condition which caused damage to her spinal cord. While she was in hospital, she developed pressure ulcers which were so serious they caused infection of the bone marrow, shortening of the muscle tissue in her legs, and a dislocated hip. She was unable to sit upright and had to spend most of her time in bed.

While it’s certainly the case that the damage to her spinal cord meant she would have been confined to a wheelchair after leaving hospital, the needless additional damage caused by the pressure ulcers have had an even more profound impact. If this appalling negligence had not occurred, the patient would have been able to spend her waking hours out of bed in a standard wheelchair which she could have propelled herself; she would have been able to undertake some basic household tasks and would have been able to get out and about much more than in her present condition. She would also have needed no more than around seven hours of professional care a week.

Now, this poor woman needs two full-time carers on a 24-hour basis, and will need to move house to a larger property to accommodate them. The court has awarded her damages of almost £3 million to pay for her future care and needs, and for her pain and suffering. 

Here at APIL we often say that the best way for the cash-strapped NHS to avoid having to pay compensation is to avoid the negligence which leads to needless injuries in the first place. If ever there was a case which proves that point, this is surely it.  

Under pressure to prevent needless injury
Hartwell Jane | 29 Jan 2015

I am - at heart - a campaigner. One of the aspects of my role as vice president which I love is being loud and proud when helping APIL campaign against needless injury; it is after all one of the organisation’s core objectives.

The campaign we launched last year to highlight the issue of pressure ulcers really captured my imagination: When the cash strapped NHS is straining to cope, having to deal with a reported £2 billion funding shortfall, why does it not do all it can to prevent pressure ulcers, an ‘easy win’ which would save it millions of pounds in treatment for injuries that needn’t have occurred? In so doing, the NHS would also meet one of its core objectives – to improve the lives of its patients - as opposed to making them more ill in hospital than they were when they arrived.

When we rolled out the campaign  some people couldn’t seem to get their heads around why the Association of Personal Injury Lawyers was campaigning to prevent injury: Surely (they said) our members benefit when people are injured, and we can successfully sue for damages on their behalf? What cynics some people can be! The press often likes to depict us either chasing ambulances for people injured outside hospital, or as bloodless vampires preying on those who are injured inside it. The truth is that actually we are decent human beings who do not wish to benefit from others’ misery but do want to fight their corner where we are needed, and right the wrongs done to them.

For those who do not know, pressure ulcers (also known perhaps more commonly as bed sores or pressure sores) develop when pressure is applied for long periods to an area of the skin. This in turn disrupts the blood supply and the skin breaks down, forming an ulcer. They are often seen in people with mobility problems, people who can’t move for long periods and are confined to a chair or a bed. The elderly are particularly prone because their skin becomes more fragile with age. If pressure ulcers are not treated appropriately and early enough they can deteriorate quickly to the point where muscle or even bone is exposed. They are – as one can imagine – very, very painful, and if left to fester, they can become incurable.

What we know from NHS England’s own figures is that the cost to the NHS of treating serious pressure ulcers could be as much as £186 million every year. But perhaps a more alarming statistic  is that 95 per cent of pressure ulcers are completely preventable. So for our national health service to cause them, in turn causing increased pain to their patients, and an increased drain on NHS resources, is surely a national disgrace.

There is, however, a lot of good practice out there. APIL’s campaign draws inspiration from the excellent work of NHS Midlands & East and its determination to “stop the pressure”: Championing simple, old fashioned nursing techniques, it has devised a package of measures identifying firstly where the high risk areas on a given patient are (often their bony extremities), emphasising the importance of skin inspection, encouraging movement, identifying moisture and incontinence issues as risk factors, and ensuring good nutritional intake and hydration. Where followed, these initiatives have led to a 50% reduction in the prevalence of pressure ulcers, and they have recently been rolled out to all NHS Trusts in England. APIL argues for a wider take-up – nationwide, and in care homes across Britain.

We also call for mandatory training on the relevant NICE guidelines – prevention is the key here, and this depends on those caring for patients and residents knowing how to risk assess a patient, how to spot the early signs and treat them there and then. Tissue viability nurses are specialists in this field and should be on hand to advise and treat wounds that don’t heal as expected, or where a patient has complex needs. 

Where a patient or care home resident has developed a pressure sore, or is at particular risk of doing so, one person on the care team should be given overall responsibility to ensure that appropriate advice is sought and treatment is given and that if a treatment plan is in place it is adhered to, with ultimate responsibility resting with this named person.

Further, there should also be a uniform system across the board to record the incidents of pressure ulcers, their stages, how they are treated and the outcomes. The Care Quality Commission should carry out spot-check inspections to ensure that proper data is being collected and there is no false or misleading reporting. This is particularly important because APIL has discovered a ‘postcode lottery’ when it comes to the standards in hospitals across the land, and even sometimes between hospitals in the same district. Patients and their loved ones need information they can rely on about how seriously a hospital – or a Trust – take the prevention and treatment of pressure ulcers, to enable them to take a view.  

The soothsayer Richard Susskind, speaking at a lecture last year, addressed the hall on what he felt consumers wanted from the law. He said that people don’t want an ambulance at the bottom of the cliff; they want a fence at the top. He is right. I would prefer to live in a world where no one was needlessly injured, even if I had to retrain as a tax lawyer. This is why campaigning to prevent needless injury is perhaps APIL’s most important objective and one behind which we all can rally.

Asbestos in Schools - the time for action is now!
Hartwell Jane | 14 Jan 2015

As a personal injury lawyer, my role is normally to try and help people piece back together their lives after suffering serious injury. Campaigning on the issue of asbestos in schools, though,  gives me a rare opportunity to change the future.

More than 75 per cent of Britain’s state schools contain asbestos and indeed in Wales the percentage is higher at approximately 85 per cent. In other words the vast majority of the population of the UK may have encountered asbestos whilst at school.

I first became aware of the issue when I was instructed on behalf of a school cleaner who had been diagnosed with the asbestos-related cancer, mesothelioma. Unsurprisingly she was unable to recall any exposure to asbestos. It did not occur to her that she might have been exposed to asbestos as a child at school or later when working at a number of schools.

Not long afterwards I had the privilege of hearing Michael Lees MBE speak. Michael, who lost his wife Gina, a schoolteacher aged only 51, to mesothelioma, has been a tireless campaigner on asbestos in schools and his sheer bloody minded persistence has been an inspiration to many including myself.

I quickly realised that whilst in England, the Department for Education was taking some note, in Wales where health and education are both devolved to Welsh government, no-one appeared to be taking responsibility for the problem. This led to the founding of the Right to Know Asbestos in Schools campaign. I have since become part of the UK Asbestos in Schools Group and attend the Joint Union Asbestos Committee as an observer.

So why is this important? We are seeing an increasing number of teachers, a profession not normally associated with exposure to asbestos, dying from mesothelioma. This has risen from three teachers per year dying in 1980 to 22 by 2012. Official statistics only record deaths aged up to 75. Former teachers aged over 75 have also died from mesothelioma. Since 1980 more than 291 teachers have died.

There are also deaths from mesothelioma amongst teaching assistants and school secretaries. It is known that school cleaners, caretakers and cooks are also dying but the occupational statistics are generic and do not identify those who worked in schools.

This is just the tip of the iceberg, however, because for every teacher there are 20-30 children, and they are more vulnerable. We are now seeing people dying from mesothelioma as a result of childhood exposure.

In June 2013 the Committee on Carcinogenicity reported to the Department for Education that children were more vulnerable than adults to asbestos exposure.

Committee member and world renowned epidemiologist Professor Julian Peto has estimated that between 200-300 people will die each year because of their exposure to asbestos  at school in the 1960s and 1970s.

If people were dying in such numbers because of accidents on the roads or at work then there would be an outcry. However because of the nature of mesothelioma, and the fact that it takes decades for the disease to become symptomatic, exposure to asbestos in our schools is not getting the attention it deserves.

As our school buildings age, it is becoming harder to manage the asbestos in our schools. The excellent report of the All Party Parliamentary Group on Occupational Health “Asbestos in Schools The need for action” contains the following recommendations:-

  • “The Government should set a programme for the phased removal of asbestos from all schools, with priority being given to those schools where the asbestos is considered to be most dangerous or damaged.
  • Standards in asbestos training should be set and the training should be mandatory and properly funded.
  • A trial should take place to perfect a system of widespread air sampling in schools.
  • A policy of openness should be adopted. Parents, teachers and support staff should be annually updated on the presence of asbestos in their schools and the measures that are being taken to manage it.
  • Pro-active inspections to determine the standards of asbestos management should be reinstated, with a view to reducing future costs.
  • Data should be collected centrally on the extent, type and condition of asbestos in schools and this becomes an integral part of the data collection of the condition of the nation’s schools.”

A real issue is that we do not know the measure of the problem that faces us, as we do not truly know the extent of the asbestos in our schools. Governments need to collate the data so that the action to be taken can be properly assessed.

To quote from Professor Peto’s evidence to the Education Select Committee in March 2013

"All that matters is whether or not kids are breathing in asbestos and, until you find that out, everything else is hot air"

We cannot afford further inaction!

Should the hairdressing industry be regulated?
Hartwell Jane | 08 Jan 2015

Since I qualified in 2007 I have had an interest in claims arising out of beauty treatments, most notably hairdressing.  I have seen first- hand the devastating effects of negligent hairdressing treatments, ranging from chemical burns to the scalp and face to loss of hair through misuse of products. The hairdressing industry is currently unregulated – a very worrying thought when you consider the chemicals used by hairdressers who potentially could be untrained and unqualified. 

In the past APIL has called for regulation of the industry, as has the Hairdressing Council which was established through the 1964 Hairdressers Regulation Act with the intention of giving status to hairdressers and therefore assurance to consumers. Registration with the Council remains voluntary because the Act was never fully enforced.

The Hairdressing Council estimates that only around 10 per cent of hairdressers have registered. As the industry is unregulated, and no qualifications are needed to practice as a hairdresser, there may be many that are holding themselves out as hairdressers without having any qualifications. These would not be eligible to register with the Hairdressing Council.   The Hairdressing Council does have the power to deal with complaints against hairdressers who are registered, which offers a little more assurance to those consumers who find their local state registered hairdresser online- but is this really enough?

There have been attempts to introduce a Bill in the UK to seek regulation and this culminated in the Hairdressers Registration (Amendment) Bill being introduced into the House of Commons as a private members’ bill.  This was, however, defeated in a vote by 67 to 63 in November 2011. The purpose of the Bill was to promote better regulation of the hairdressing industry to include a code of conduct and compulsory public liability insurance.  The Bill was introduced by David Morris MP who, following defeat, said: “It is very unusual for a Ten Minute Rule Bill to go to division. The House of Commons was clearly divided. I hope that now I have drawn attention to the regulation of the hairdressing industry this important issue will continue to be debated."

The matter has not since been debated in the House until this week, when Welsh MP Nia Griffith’s call in an adjournment debate for a compulsory state register was rejected by the UK Government. Ministers said a register would cost the industry £75m.

However, in November 2013 the matter was debated in the Senedd in Wales.  It was noted during the debate that the Welsh Government’s powers in the area are limited and that Vince Cable had been written to by Eluned Parrott AM to press the case and to ask him to look again at the regulation of the industry. which is estimated to be worth between £5 to £6.5 billion a year to the UK economy to be lost.

The Hairdressing Council continues its campaign and held a reception at the Senedd in February 2014 to continue to raise the awareness. I would urge you all, lawyers and consumers alike, as well as professional stylists, to give their support to the Council in lobbying the UK Government to introduce regulation in the area and limit the traumatic injuries suffered by consumers.