Plan to help victims of NHS negligence is left to languish on statute book

Patients in England are being forced to fight lengthy and costly legal battles to receive an apology and an explanation of what went wrong

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Ministers have been condemned for failing to implement a law designed to help victims of NHS negligence and improve patient safety.

The 2006 NHS Redress Act was intended to offer patients a quicker and fairer alternative to expensive and lengthy legal battles, which have caused the cost of NHS negligence to spiral dramatically in recent years. But the Department of Health has failed to produce the necessary secondary legislation to make it operational, leaving the Act totally unworkable in England.

In contrast, the Welsh and Scottish governments are accelerating their own plans to set up similar schemes.

Lawyers, medical professionals and patient safety campaigners have severely criticised the failure. The Parliamentary Health Select Committee described it as "appalling", while Peter Walsh, chief executive of the patient safety charity Action Against Medical Accidents, said his organisation was "dismayed" by the Government's failure to act.

Mr Walsh said England was now lagging behind the rest of the world. The Welsh Assembly government had "shown a refreshing willingness" to act and its scheme will be up and running by next year, while the Scottish governmen is considering the more radical step of introducing a "no-fault compensation" scheme. A similar system is well established in New Zealand but has been rejected for England.

He added: "Given that Andy Burnham was a key supporter of the legislation at the time and has now returned to health as the Secretary of State, we hope there may be a renewed enthusiasm to move forward. It is completely unacceptable for the Government to sit on its hands and do nothing."

The NHS Litigation Authority this month revealed a 22 per cent year-on-year rise in compensation payouts in England. Nearly half of the £807m paid out by the authority in 2008-09 was spent on lawyers. There has been a four-fold increase in clinical negligence costs incurred by the NHS over the past decade. Official figures from 2002 show that legal fees exceed the sums paid out to patients in two thirds of cases where compensation is under £50,000. Though the time taken to settle a claim has been reduced, it still takes on average 1.4 years.

The proposed NHS Redress Scheme was intended to offer a swift resolution for patients when things go wrong by providing investigation, remedial treatment, rehabilitation and care where needed, as well as explanations and apologies, and financial compensation in certain circumstances. It would largely eradicate the need for lawyers for claims under £20,000, saving an estimated £7.6m in legal costs in the first year. Its contents are based largely on recommendations made by the Chief Medical Officer in his 2003 report Making Amends, which criticised the current system as "slow, complex, unfair and expensive".

The Government claims it will consider implementing the new scheme after recent reforms to the complaints system have been fully assessed. But critics say this is disingenuous.

Peter Gooderham, lecturer in law and bioethics at Manchester University Law School, said: "While the Act did not offer the radical reforms some people hoped for, the Redress Scheme it provided for did offer an alternative to the clinical negligence system for lower-value cases.

"I suspect it has not been implemented because the Government thinks it can better keep the lid on the costs by sticking with the current system, however unsatisfactory."

The scheme was also intended to build trust between NHS staff and patients by discouraging blame and encouraging openness. According to the British Medical Association, the current clinical negligence system is focused on finger-pointing rather than improving services.

The select committee said: "By dragging its heels over implementing the scheme, the Department of Health is... obliging the NHS to spend considerable sums on legal costs and... hindering the development of a safety culture in the NHS."

When two-year-old Chloe Coyle became unwell in September 2002, her parents, Kate and Chris, took her to an accident and emergency department, but were sent home. It took three more visits for Chloe to be admitted to hospital, by which time she was suffering from an excruciating headache. Blood tests were taken, but the results were not seen; antibiotics were prescribed, but not given. By the time meningitis was finally diagnosed, it was too late.

Kate Coyle said: "We just wanted to know why things had gone so wrong and have some reassurance that it would never happen again. We had no choice but to see a lawyer because the [NHS] trust kept fobbing us off. It took three years of battling to get a three-line apology from the trust and just over £20,000 compensation.

"We had absolutely no interest in the money but it was the only way they would accept responsibility – take it or leave it. We spent so much energy writing letters, while trying to grieve, just to get an apology.

"I cannot understand why the new scheme has not started – we would never have gone to lawyers if there had been another option."