Before the Department of Health proceeds further with its consultation on fixed costs, I wonder if they have discussed their plans with Welsh Health Boards and their executives to see what lessons can be learned from the system here in Wales.  Probably not.

In Wales we were promised great things for our clients when the Putting Things Right/Redress Scheme came into being in April 2011.  The scheme in Wales is voluntary and is intended to resolve cases where financial compensation does not exceed £25,000.  Staff across the Health Boards would receive appropriate training to enable them to robustly conduct and oversee investigations in a consistent, fair and timely manner.

The intention was “investigate once, investigate well”, making it easier for patients to raise concerns and to be engaged and supported in the process.  Perhaps more importantly the Health Board would demonstrate learning when things had gone wrong.

Within 30 working days of lodging a concern they would provide their final reply.  If they decided there might be a qualifying liability they would make an offer and notify the patient of eligibility to seek legal advice from a solicitor. 

The fee paid to the solicitor by the Health Board is £1,600 excluding of VAT.  Further stages are set out in the legal fees framework providing for additional fees if independent reports are commissioned.

Since then,  my firm  has not dealt with a single case where the final reply has been produced within 30 working days.  Most clients come to us for advice either when they have received an offer of compensation or the Health Board has denied a qualifying liability and they are unhappy with the response.  Many wait 12 months or longer to receive the final reply.

Summarised below are a selection of cases which could and should have been dealt with under the fixed fee scheme and been resolved within a few months to the satisfaction of the client and with us receiving a fixed fee. We removed all but one of the cases from the scheme because of the delays caused by the defendants:

• A client consented for a total abdominal hysterectomy.  Following surgery she was told that only her ovaries had been removed but the Health Board was unable to explain why. A complaint was lodged. Liability was denied. We removed the case from the scheme and served a letter of claim and an offer.  The letter of response was received eight months later. Shortly afterwards compensation was negotiated at £18,000. Had the Health Board settled as requested the cost to them would have been £19,920 (£18,000 damages and fixed fee of £1,600 plus VAT).  Instead, their total expenditure was £34,000* (£18,000 compensation and £16,000 costs) excluding their own legal costs.

• Four week delay in diagnosing fracture to neck.  Liability was denied and the Health Board refused to instruct a liability expert. The case was removed from the scheme. Damages were subsequently negotiated at £1,250. Total expenditure to the Health Board was £13,695* (£11,775 costs, £1,250 compensation) excluding their own costs. Had they acted sensibly their expenditure would have been £2,850.

• Prescribing error which led to the exacerbation of epilepsy. The case could have settled under the redress scheme for £2,000 damages and £1,600 costs but, despite all attempts by us to settle, the defendant was completely inflexible. The case eventually settled for £2,000 damages and costs of £21,000*.

• Claim on behalf of deceased elderly lady on the basis that she suffered with  pressure sores and from malnutrition. Liability was admitted six months after her death and an offer of £2,500 was made.  We advised that the offer was insufficient and put forward a counter offer of £20,000. Our costs at that stage were £500. Settlement was agreed at £20,000 almost 12 months later. Because the case remaied in the redress scheme we received a fixed fee of £1,600 when the actual costs were £7,000.

The conclusion is clear: the fixed fee scheme in Wales is not working. NHS Wales is not learning from its mistakes.  It is repeating mistakes and paying the price for that. Even when liability is admitted, cases are usually grossly undervalued. Clients are increasingly distrustful of the Health Boards and frustrated and upset by their delays and the effect on health service funds that could be put to much better use.

* These cases were concluded before the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act and include success fees and after-the-event insurance premiums.