Each year around 1 million people suffer adverse consequences from NHS care. Many seek legal advice but only a few, about 11 500, get any financial compensation. The majority of those that suffer harm cannot access the justice system and those that do find the process slow and frustrating. Even compensation offers no certainty that lessons have been learnt and/or health care improved. We end up spending billions moving many thousands of unhappy people round a system that leaves 98% even more unhappy. The recession and Conditional Fee Agreements (that's no-win, no-fee to you and me) mean that this situation is likely to get worse. The latest proposals1 to reform this crazy system will tinker at the edges but do little for the heart of the problem.
Faced with similar problems lawyers devised restorative justice to help perpetrators make redress for harm done. We believe that these ideas could form the basis for ‘restorative redress’ in the NHS.
Restorative redress aims for compassion and mutual understanding. It will not suit everyone; the NHS makes some truly terrible mistakes and some people need the justice and compensation that only the courts can give. But talk to medical negligence lawyers and it is clear that even today only a minority — at most perhaps 30% of the people who approach solicitors — want money. Instead they want to have a ‘real’ conversation, to know that what happened matters to the people who were caring for them, and that everything is in place to prevent any recurrence.
So how might we create restorative redress? Patient Opinion is a national, not-for-profit social enterprise where patients, families, and staff can share their stories of care across the UK with which we are all associated. Our proposals for restorative redress have been informed by this panoramic view of patient views on the NHS. We believe that with careful selection of cases and with the right safeguards it will be possible to create a non-adversarial system that would be rooted in mutual compassion and understanding, rather than defensiveness and anger. Online tools would help patients refine what they really wanted to get out of any dialogue with those who cared for them. Participating trusts and defence bodies could then decide what they could offer in return and communicate this via structured online processes. Trusts and clinicians would commit to following the full disclosure of evidence and the steps recommended by the Sorry Works! Programme in the US.2 Some cases might be resolved at this point but many would require face-to-face meetings employing skilled independent facilitators as used in Australia.3 To complete the process, and recognise the significance of the event, agreed statements of empathy and proposed changes will be published online. Each 1% reduction in litigation cases would save £10 million.
Our fear of litigation encourages defensiveness and discourages honesty and transparency. We cannot outsource resolution to lawyers. We will only find a solution when we create a dialogue that we are proud of as a profession, that allows us to say the things we need to say, and hear the things that people have to say to us.
Footnotes
Patient Opinion is currently looking for places and people to pilot restorative redress with. Please get in touch with us at: restorative.redress{at}patientopinion.org.uk
- © British Journal of General Practice, 2010.