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On 20 October 2013 The Guardian reported an announcement by the Department of Health that new guidance will be issued to prevent NHS Trusts from refusing to investigate complaints of poor medical treatment, where the injured patient is also considering making a claim for compensation.
The NHS complaints procedure already requires Trusts to investigate complaints in these circumstances; however, the article explains that patients’ rights organisation AvMA (Action Against Medical Accidents), recently threatened to seek a judicial review over what it described as: “a significant and persistent problem in that NHS trusts are halting or abandoning investigations into complaints made under the complaints procedures once there has been any indication that legal action is being contemplated or will be taken at some future point.”
Chief Executive of AvMA, Peter Walsh, was quoted as saying: "Refusing to investigate complaints if people exercise their civil right to take legal action is deeply unfair and a disgraceful abuse of patients' rights, which is also totally at odds with government pronouncements about openness".
A claim for compensation is an important legal right in the most serious cases in which poor medical care leads to injury, permanent disability or the death of a patient. Each year Kingsley Napley acts for injured patients and bereaved families in these situations. The compensation which is obtained through a clinical negligence claim allows the injured person to meet the additional costs which they face because of their injury. In cases where a patient has died as a result of negligence, compensation can provide some measure of financial support for their dependents.
However, for the majority of our clients, obtaining compensation is not the whole story. Where there has been a serious error, an injured patient or the family of a deceased patient usually feel that they need to understand what went wrong. They require reassurance that the problem is not being swept under the carpet and that steps have been taken to prevent it happening again.
Investigating a patient’s complaint does not prevent the NHS from defending a legal claim for compensation where that claim is not justified. Instead, fully investigating complaints and learning from the investigation findings should improve patient safety for everyone who uses NHS services and, over time, reduce the number of serious incidents from which medical negligence claims arise.
The NHS Constitution gives patients the right to have a complaint properly investigated and also the right to receive compensation where they have been harmed by negligent medical treatment. Forcing patients to choose between these rights following a serious incident does not serve the patient, the NHS or the public. We welcome the steps which AvMA has taken to address this issue and await the new guidance from the Department of Health.
If you would like advice regarding a potential clinical negligence claim, please contact the Clinical Negligence and Personal Injury Team on 020 7814 1200 or by emailing firstname.lastname@example.org
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