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3 Inquiries
To Department of Health by Amanda Bennett 18 May 2009
TABLE OF NOTABLE INQUIRIES SET UP SINCE 1990, Annex A
To House of Commons by Amanda Bennett 19 May 2009
Relationship with Harman & Harman Solicitors in relation to the Clifford Ayling case
To Kent Police by Amanda Bennett 6 May 2009
Trust medic legal claims
To University Hospital of North Staffordshire NHS Trust by tricky dicky 31 March 2011
RE:Paul Gaffney's Final FOI for a time
To Department of Health by Paul Gaffney 9 March 2011
Working With Police Investigating Doctors
To South East Coast Strategic Health Authority by Wendy Hesketh 23 March 2011
Protocol for experts acting in law
To North Middlesex University Hospital NHS Trust by K. Taylor 9 January 2010
Refund of Bank Charges and DWP errors
To Department for Work and Pensions by Clare Rhys-Jones 26 April 2010
Nottingham PCT denies all NHS treatment to any patient it dislikes on a discriminatory or homophobic basis.
To Nottingham City Primary Care Trust (PCT) by Germain Gross 20 January 2011
NHS Redress Scheme re. criminal acts by health professionals
Amanda Bennett made this Freedom of Information request to Department of Health
The request was successful.
From: Amanda Bennett
19 May 2009
Dear Sir or Madam,
I would like to bring to your attention the answer to a written
question. My own query follows this quoted answer.
Lord Darzi of Denham (Parliamentary Under-Secretary, Department of
Health; Labour) | Hansard source stated:
'The NHS Redress Act 2006 is a piece of framework legislation that
will need to be enacted through secondary legislation. The
department has continually believed that putting in place the
appropriate secondary legislation for this piece of work will
require considerable stakeholder involvement to discuss the detail
around the working of any scheme. This would mean that any
legislation could not be implemented any earlier than at least
2010.
The department considers it is currently more important to embed
the general principles of wider redress across the National Health
Service—those of apologies and explanations, a spirit of openness,
a culture of learning from mistakes and robust investigation—rather
than focusing on financial redress only for those cases:
which are of low monetary value (currently envisaged to be under
£20,000);which satisfy set principles in tort law; and where
financial compensation would be appropriate.
The significant and important area of work around complaints reform
is currently underway and will be implemented in April 2009. It
will lay the general foundations of redress, in its wider sense,
across health and social care by:
putting the patient or service user at the heart of any complaints
process and ensuring that it will be easier and simpler for people
wishing to make a complaint;moving to a more open, accessible,
flexible and sensitive approach to responding to
complaints;ensuring robust and appropriate
investigation;emphasising the benefits of responding to complaints
properly to help improve services; and learning from mistakes.
Once these principles are embedded across health and social care
organisations, applying redress measures more specifically to any
particular scheme or initiative (such as in the area of clinical
negligence) can be considered further.'
Is there any intention by the Department of Health (or the wider
government) to extend the "general principles of wider redress" to
criminal cases committed by health professionals against patients?
Examples of such cases would include Shipman, Clifford Ayling,
William Kerr, Michael Haslam, Peter Green, Beverly Allitt, Paul
Cobb etc.
Is it intended that the Redress Scheme would include vicarious
liability for such (criminal) "wrongs" and thus provide
compensation in the same way as it will for clinical negligence
cases?
I would appreciate your considered response to these questions.
Yours faithfully,
Amanda Bennett
From: Amanda Bennett
21 May 2009
Dear Sir or Madam,
Further to my previous letter on the same matter, I wonder if you
could please answer these additional questions? I understand that
the NHS Redress Act is unlikely to be enacted by secondary
legislation before 2010, but I hope that you can in any event
answer the following:
I understand that the Act specifies that the NHS Scheme does not
apply to primary care, in which case GPs maintain their own
insurance for liability for adverse events through the Medical
Defence union, however, the Act does envisage Health Authorities
etc being held vicariously liable - would an individual be able to
apply for redress to a PCT or an HA for the wrongful/negligent acts
of a GP through the scheme or not?
Also, what if there are a number of potential claimants stemming
from the same act, or from a series of separate acts committed by
the same healthcare professional? For example, in the Ayling case,
he intimately examined a number of women who alleged he sexually
assaulted them and, as a result, these women sued the health
authority under the principle of vicarious liability. The Ayling
case is complex in that he worked in both primary and secondary
care at the same time. Would the Redress Scheme, if it covered such
patients, examine each case individually? Or would it take them all
together? What would the effect on this answer be, given that some
cases might be from the primary care sector and others from
secondary care?
The NHS Redress Scheme and the attendant "Duty of Candour"
discussed by Sir Liam Donaldson that is said to underpin the Scheme
is claimed to rely on openness rather than fault or blaming, yet
surely fault of some sort has to be identified in order for
compensation to be paid?
On the point of fault, if there were criminal proceedings (again,
using the Ayling case as an example), would the Scheme take the
culpability determined by the criminal trial as established from
the outset for its own investigation?
Lastly, how can GPs comply with a Duty of Candour and maintain
their insurance cover? Would such a duty be akin to admitting
liability for insurance purposes? How could this problem be
resolved?
I would be grateful for clarification from the Department on these
points. I appreciate that the legislation is new and has yet to be
enacted through secondary means, however, I'm sure the Department
itself has a clear idea of the meaning behind the statute itself,
if not in the detail at this stage.
Yours sincerely,
Amanda Bennett
Department of Health
16 June 2009
Our ref: DE00000415264
Dear Ms Bennett,
Thank you for your email of 19 May to the Department of Health about the
NHS Redress Scheme.
The intention of the NHS Redress Act is to improve the system for handling
and responding to clinical negligence claims by providing for the
establishment of a scheme to enable settlement, without the need to
commence court proceedings, of certain claims which arise in connection
with hospital services. Under this Act, a scheme may only apply to cases
involving tort, which is in law a civil wrong arising from an act or
failure to act for which an action for personal injury or property damages
may be brought.
It would not be for the Department of Health to introduce mechanisms
through either legislation or otherwise for a compensatory/redress scheme
for deliberate criminal acts which would be subject to criminal court
proceedings.
Yours sincerely,
David Wilson
Customer Service Centre
Department of Health
show quoted sections
Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.
From: Amanda Bennett
16 June 2009
Dear Mr. Wilson,
Thank you for answering my initial questions on the NHS Redress
Scheme. I trust that you will, in time, answer my additional
questions on the same matter.
Yours sincerely,
Amanda Bennett
Department of Health
30 June 2009
Our ref: DE00000422421
Dear Ms Bennett,
Thank you for your further email of 16 June to the Department of Health
about the NHS Redress Scheme.
The NHS Redress Act 2006 is a framework Act, in the sense that the
proposed NHS Redress Scheme has to be enacted through secondary
legislation. During the Bill's passage through Parliament, a number of
commitments to consult on specific issues, prior to drafting the
regulations, were given. Any current response about the Act has,
therefore, to be based upon the original policy intent behind the Act.
I think it may be helpful to explain the thinking behind the Act. The NHS
Redress Scheme was not originally conceived as an application scheme,
though applications would be permitted. The primary aim was to ensure
that where NHS organisations identified errors though risk management and
clinical governance procedures, the patient (or patient's representative)
is contacted, the case is investigated and, where there is a legal
liability in tort, financial redress is payable without the need to go
through the courts. The policy intent was that, in general, the Scheme
would initially exclude primary care, though this position will be
reviewed three years after the Scheme comes into effect. Section 1(6)(b)
specifically excludes primary medical services from the scope of the Act,
so the proposed NHS Redress Scheme would not cover acts by a GP. The
proposed Scheme relates only to individual cases, where there is a
liability in tort. Cases could not, therefore, be taken together.
During the passage of the Bill, the Government made clear that it was not
minded at that time to introduce a 'Duty of Candour'. The Act is not
therefore underpinned by such a 'duty'. What it does seek to achieve is a
greater spirit of openness, in which NHS organisations identify and
investigate potential cases under the Act and take action to provide
appropriate redress without the need to go through the courts.
Further information can be found in NHS Redress: Statement of Policy,
published by the Department of Health in November 2005, and available at:
[1]http://www.dh.gov.uk/en/Publicationsands...
I hope this is helpful.
Yours sincerely,
David Wilson
Customer Service Centre
Department of Health
show quoted sections
Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.
References
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1. http://www.dh.gov.uk/en/Publicationsands...
Things to do with this request
- Add an annotation (to help the requester or others)
- Download a zip file of all correspondence
Joan AYLING left an annotation ( 3 June 2009)
1. The solicitor Sarah Harman claimed on her firm's website that one of her clients had complained in 1971 and that as a result Clifford Ayling's 2-year contract had not been renewed after the first year. A copy of the renewal of Clifford Ayling's contract was sent to the Ayling Inquiry and the original is still in existence.
2. The solicitor Sarah Harman claimed that Clifford Ayling had botched a caesarian in Canterbury in 1981. The original documents name another doctor as having carried out the caesarian.
3. The Ayling Inquiry Report stated that Clifford Ayling had indecently assaulted an anonymous patient in Margate in 1988. Various bits of contemporaneous evidence show that Clifford Ayling stopped working in Margate at least one year earlier in 1987.
4. It was claimed in the Ayling Report that clifford Ayling was reluctant to perform caesarians and that in 1987 he performed a disastrous forceps delivery that led to a baby's death. The former patient involved appeared on television and later in the news on the day of the publication of the Ayling Report. She clearly explained that she had had a caesarian delivery.
5. At least two former patients who had signed the petition in support of Clifford Ayling after his arrest then came forward after his conviction to claim civil compensation (from both Clifford Ayling and the Health Authority).
6. One of the claimants in the group claim brought against the Health Authority by Sarah Harman was a former GP patient whose allegations at the criminal trial had led to an acquittal. The acquittal was clearly stated in the Particular of Claims but she nevertheless obtained compensation from the Health Authority.
7. One woman who made allegations against Clifford Ayling was never a patient of his at all.
8. A judge at the High Court in early 2008 stated that it could not be concluded from the wording in the White Paper that constituted the Government's response to the Ayling Inquiry that any crimes by Clifford Ayling had been committed in the 1970s or 1980s.
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