Litigation against English NHS ambulance services and the rule in Kent v. Griffiths

Medical Law Review

Volumn 15, Issue 2, 2007, Pages 153-175

  Williams, Kevin ^a  

^a SHEFFIELD HALLAM UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

AMBULANCE; ARTICLE; LEGAL ASPECT; NATIONAL HEALTH SERVICE; UNITED KINGDOM;

AMBULANCES; ENGLAND; STATE MEDICINE;

EID: 34447633964     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwm001     Document Type: Article

References (151)

1. See Ambulance Services, England: 2004-05, (NHS Health and Social Care Information Centre, 2005) at para 2.3.1.
2. See Capital and Counties plc v. Hampshire County Council [1997] Q.B. 1004 (fire fighters),
3. Alexandrou v. Oxford [1993] 4 All E.R. 328 (police)
4. and OLL Ltd v. Secretary of State for Transport [1997] 3 All E.R. 897 (coastguard).
5. See Barnett v. Chelsea and Kensington Hospital Management Committee [1969] Q.B. 428.
6. [2001] Q.B. 36 C.A.
7. See NHSLA Journal, (2003) Summer, Issue 2, at 7.
8. In 2004-05, ambulance trusts in England recorded 5.6 million 999 emergency calls, more than double the number in 1994-95, see supra n 1, para 2.1.1 and Table 1.
9. See A. Grubb, 'Commentary. Medical Negligence: Liability of Ambulance Service' [2000] Med. L. Rev. 349 at 350.
10. See Commentary [1999] Lloyd's Rep. Med. 424 at 457.
11. See F.H. Bohlen, 'The Moral Duty to Aid Others as a Basis of Tort Liability' (1908) University of Pennsylvania Law Review 217 at 219.
12. In Smith v. Littlewoods Organisation Ltd [1987] 2 A.C. 241 at 247, H.L., Lord Goff said 'the common law does not impose liability for what are called pure omissions'.
13. See too Jessup J.A. in Horsley v. MacLaren [1970] O. R. 487 at 499 (Ont. C.A.) 'no principle is more deeply rooted in the common law'.
14. In Stovin v. Wise [1996] A.C. 923 at 930, H.L., Lord Nicholls acknowledged that while the distinction was not without difficulty it continued to be 'fundamentally sound'.
15. See cases cited supra n 2. In Scotland, the position appears to be otherwise.
16. See Duff v. Highlands and Islands Fire Board [1995] S.L.T. 1362 (obiter, negligent fire authority not immune from liability)
17. and Gibson v. Chief Constable of Strathclyde [1999] S.C. 420 (police force, having assumed responsibility to warn motorists about a partially collapsed road bridge, was liable when the task was prematurely abandoned).
18. In contrast, decisions by emergency service providers about how they discharge their (usually statutory) functions may be amenable to the public law rules of judicial review. Challenge may also be possible under the Human Rights Act 1998, as in Van Colle v. Chief Constable of Hertfordshire [2006] E.W.H.C. 360 (police liable for unreasonably failing to protect the life of a witness in the face of known threats by an accused). Additionally, individual emergency workers considered guilty of neglect of duty risk disciplinary action by their employers and, in some cases, by an external regulatory body.
19. Thus, ambulance paramedics may be sanctioned by the Health Professions Council in 'fitness to practise' proceedings, and doctors by the General Medical Council, see infra n 22.
20. See Capital and Counties, supra n 2 at 1035.
21. In most of continental Europe, legislation imposes criminal (and, sometimes, civil law) sanctions against ordinary onlookers who fail to go to the aid of persons in nearby physical danger, at least where assistance would be easy'. See J. Kortman, Altruism in Private Law (Oxford University Press 2005), Chapter 4;
22. A. Cadoppi, 'Failure to Rescue and the Continental Criminal Law' in M. A. Menlowe and A. McCall Smith (eds.). The Duty to Rescue (Dartmouth Publishing 1993) at 93-130.
23. The same is true in a small number of North American jurisdictions; see J. Dressler, 'Some Brief Thoughts (Mostly Negative) About "Bad Samaritan" Laws' (2000) 40 Santa Clara Law Review 971.
24. See dicta to this effect in Stovin v. Wise [1996] A.C. 923 at 943 H.L., per Lord Hoffmann.
25. See supra n 2.
26. C. Booth and D. Squires, The Negligence Liability of Public Authorities (Oxford University Press, 2006) at para 3.106 are critical of Lord Hoffmann's 'no duty' justifications
27. in Stovin, ibid.. They suggest that a 'stronger argument' for restricting the liability of public bodies for pure omissions is the need to protect them from 'the threat of indeterminate liability'.
28. See E. J. Weinrib, 'The Case for a Duty to Rescue' (1980) Yale Law Journal 247 at 248, noting that even in the USA the rule was 'in the process of being consumed...by the widening ambit of exceptions'.
29. More recently, Mr Justice Allen Linden in (2005) 13 Tort Law Review 59 at 61 observed that 'with so many exceptions, the pure no duty role actually covers very few situations of nonfeasance'. Among other devices used to impose duty is the notion of the 'special relationship' which has been regularly employed to deny that the parties truly were 'strangers'.
30. I have argued elsewhere that a duty of emergency medical rescue should be recognised by the common law, see K. Williams, 'Medical Samaritans: Is There a Duty to Treat?' (2001) 21 O.J.L.S. 393.
31. See J. G. Fleming, The Law of Torts, 8th edn. (Law Book Company Ltd. 1992) at 147.
32. Thus, in Stevenson v. Clearview Riverside Resort [2000] OJ No. 4863 (Ont. H.C.) a Canadian court held, inter alia, that an off-duty ambulance attendant was not obliged to participate in the rescue of a friend injured at a party after diving into a shallow lake.
33. As to professional discipline, see infra n 22.
34. See Lowns v. Woods [1996] Aust. Torts Reports 81-376 (N.S.W. C.A.).
35. See too Egedebo v. Windmere District Hospital Association (1993) 78 B.C.L.R. (2d) 63 (B.C. C.A.). A doctor in a Canadian hospital emergency room who failed to arrange treatment when asked was negligent, despite being off-duty. Arguably, the sick person who made the request was already a 'patient' in the 'professional context' of the hospital.
36. See too Barnett, supra n 3.
37. In order to avoid pre-empting the answer to the duty question, it is preferable to refer to such claimants as 'casualties' rather than 'patients' since it is well established that patients are entitled to careful treatment, see supra n 3 and text.
38. In Kent v. Griffiths, supra n 4 at 39, James Munby Q.C. for the defendants relied heavily on the distinction, arguing that 'the claimant's complaint relates exclusively to the period before she was accepted by or admitted to the ambulance as a patient'.
39. See reg. 15(6), NHS (General Medical Services Contracts) Regulations 2004 (SI 2004 No. 291) requiring that 'immediaitely necessary treatment' is provided to 'any person... owing to an accident or emergency at any place in its practice area' (emphasis added). Regulation 2 defines such needful casualties as 'patients'. GPs are entitled to be paid for these services by their local Primary Care Trust.
40. Failure to treat puts a GP in breach of their statutory terms of service exposing them to disciplinary action by their Primary Care Trust. Additionally, all doctors are bound by the General Medical Council's code of Professional ethics, breach of which risks a misconduct charge. See Good Medical Practice, (4th edn., November 2006) which provides, at para 11, under the heading 'Treatment in Emergencies', 'In an emergency, wherever it arises, you must offer assistance, taking account of your own safety, your competence, and the availability of other options for care'.
41. See K. Williams, 'Doctors as Good Samaritans: Some Empirical Evidence Concerning Emergency Medical Treatment in Britain' (2003) 30 J.L.S. 258. Notions of professional and ethical responsibility principally motivated the doctors in the survey. Unsurprisingly, they had only a hazy picture of the law and what it expects of them.
42. Supra n 4.
43. [1999] Lloyd's Rep. Med. 424.
44. See supra n 20.
45. In accordance with the criteria for recognising a novel duty in Caparo Industries plc v. Dickman [1990] 2 A.C. 605.
46. Initially, the London Ambulance Service had conceded duty. However. following Capital and Counties. supra n 2, they withdrew their admission and unsuccessfully applied to strike out the claim,
47. see Kent v. London Ambulance Service [1999] P.I.Q.R. P192.
48. Resource allocation questions are often (though not universally) treated as non-justiciable in both private and public law litigation. See, respectively, R. Oppenheim, 'Resource allocation and clinical negligence claims' (2004) 10 Association for Victims of Medical Accidents Medical and Legal Journal 69
49. and E. Palmer, 'Resource Allocation, Welfare Rights - Mapping the Boundaries of Judicial Control in Public Administrative Law' (2000) 20 O.J.L.S 63.
50. See supra n 4 at 53.
51. See supra n 4 at 54.
52. See supra n 4 at 47, 50, 53 and 54. Unlike Turner J., who emphasised the allocation of a particular ambulance, Lord Woolf said, at 54, that 'acceptance of the call... established the duty of care'.
53. Kortman, supra n 12 at 62, says it was sufficient that 'the ambulance service had decided to intervene' and that 'an undertaking in the sense of an "implied promise" does not seem to have been required'.
54. In Barnett, supra n 3, Nield J. seemingly based duty partly on the hospital holding itself out as providing emergency treatment and partly on an implied promise of treatment (a nurse in A & E having passed details of the night watchmen's symptoms to the on-call doctor).
55. An alternative justification for the result, suggested in M. A. Jones, Medical Negligence, 3rd edn. (Sweet and Maxwell 2003) at 112, is that the defendant's negligence 'did actually worsen the claimant's position'since had it been known that the ambulance would long delayed Mrs Kent's husband would have driven her to hospital. Lord Woolf did not treat 'specific reliance' of this sort as relevant (except as regards causation). Duty should not depend on the accidental circumstance that the particular claimant had other salvation options that were foregone.
56. See Bolitho v. City and Hackney Health Authority [1998] A.C. 232, H.L.
57. The 'no proximity' rulings in the three cases cited in supra n 2 seem factually implausible, though legally speaking they were critical to the shared conclusion that no duty of professional rescue exists (or, rather, should be recognised).
58. Alexandrou v. Oxford, supra n 2, additionally relied on policy arguments for refusing to hold the police duty bound.
59. See supra n 4 at 52-53.
60. See What CHI Has Found In: Ambulance Trusts (Commission for Health Improvement, 2003) at 17.
61. Even so, liability would not necessarily follow, of course, unless the court was also prepared to see the mistake as sufficiently culpable and causative.
62. Supra n 4 at 43 and 53.
63. Turner J., with whom Lord Woolf agreed, said he would have found it 'offensive to, and inconsistent with, concepts of common humanity if...the law could not provide a remedy' in these circumstances, see supra n 25 at 453.
64. Cf. T. Hickman, 'And that's Magic - Making public bodies liable for failure to confer benefits' [2000] C.L.J. 432
65. and the law reporter's critical 'Commentary' on the reasoning of Turner T., see supra n 25 at 456.
66. See the cases cited supra n 2.
67. Booth and Squires, supra n 14 at paras 12.02 and 12.38, say it is unclear whether this difference in outcomes is due to 'differences in the services themselves' or simply when the cases were decided.
68. Only Kent was heard after 'the significant expansion' of public authority liability following decisions such as Barrett v. Enfield LBC [2001] 2 A.C. 550.
69. The legal difference make little practical sense, and seem particularly arbitrary in some contexts, such as road traffic accidents, where fire, police and ambulance services are heavily inter-dependent and must necessarily work closely together if they are to be effective saving people and property, see K. Williams, 'Road Accidents and the Emergency Services: The Law and Practice of Professional Rescue Revisited' (2003) 19 P.N. 517.
70. See supra n 6 at 351.
71. W.V.H. Rogers (ed.), Winfield and Jolowicz on Tort, 17th edn (Sweet and Maxwell, 2006) at 180 points out that while the fire service is primarily concerned with saving (usually insured) property and that any duty would likely enure for the benefit of a subrogated fire insurer that 'would hardly justify a different result where life was at risk from fire'.
72. See R. Lewis, 'Insurance and the Tort System' (2005) 25 L.S. 85 at 103 speculating on the influence of insurance on judicial decision-making in this context.
73. CNST is a voluntary, risk-pooling scheme that meets the cost of medical negligence claims against the NHS. All ambulance trusts are members. NHSLA handles claims arising under the Scheme on behalf of English NHS trusts. Ironically, Kent v. Griffiths, supra n 4, was not included in the data set because legal proceedings were begun in February 1994, before NHSLA began to collect claims data. In addition to actual claims notified, the NHSLA database includes potential claims or 'incidents' (where a formal letter of claim has not been received but a patient has indicated their intention to pursue a claim). 'Incidents' are not included in the data set provided.
74. Different trusts elected for different levels of excess ranging from £10,000 to £500,000. Until April 2002, there were two categories of claim. First, those under a trust's excess whose outcome may or may not have been reported to be NHSLA. Second, those believed to be over the excess or under it but outstanding on 1 April 2002, which automatically transferred to NHSLA on that date.
75. The extent of any distortion is not known. Analysis of the data provided by NHSLA shows that most claims are lost, while those that settle mostly do so for fairly modest sums, see D. Outcome of Claims, below. It follows that in the earlier era, before the 'call in' date in April 2002, some of these claims might not have been reported centrally to NHSLA because they were below the local excess. There is no central source of 'below exces' claims.
76. For what were said to be 'confidentiality' reasons, the NHSLA took a policy decision not to allow the author access to the detailed case files.
77. Factsheet 3: Information on claims (NHSLA, July 2005) reveals a further discrepancy. It records the total number of claims (excluding 'below excess' claims) against ambulance services for the period April 1995 to 31 March 2005 as 242.
78. See supra n 47 and text.
79. See supra n 1 and 5.
80. Some emergency care is provided by volunteers, such as St John's Ambulance Brigade, as well as by fire fighters, police and NHS-trained community 'first responders'. In parts of the country, particularly at major incidents, NHS ambulance provision may be supplemented by specialist scene-of-accident medical teams under the organisational auspices of the British Association of Immediate Care (BASICS). Details can be found at http://www.basics.org.uk.
81. See L. Mulcahy, Disputing Doctors. The socio-legal dynamics of complaints about medical care (Open University Press, 2003) at 64.
82. Estimates vary as to the incidence of 'adverse events' in the NHS and the frequency rate of claims. The number of claims rose almost 15-fold between 1995-96 and 2002-03 according to a report by the Chief Medical Officer, Making Amends. (Department of Health, 2003) at para 31.
83. Even so, P. Pleasence et al., 'The experience of clinical negligence within the general population' (2003) 9 Clinical Risk 211 estimate that only about one negligently damaged patient per hundred actually claims. Claims are not necessarily representative of complaints about adverse events, just as judicial decisions are not necessarily representative of claims.
84. See Factsheet 3: Information on claims (NHSLA, July 2005) showing the total number of claims against all NHS trusts between April 1995 and 31 March 2005 as 28,818 (including 242 against ambulance trusts).
85. See NHS Redress Act 2006.
86. Implementation of the scheme, which may be extended beyond hospitals to include claims against ambulance trusts, see s.1(5)(b), awaits detailed regulations and is unlikely to be fully operational before the end of 2008.
87. There will be an upper limit on the value of admissible claims, which has yet to be specified. Currently, most claims against ambulance trusts that settle do so for relatively modest sums, see Section IIID, Outcome of Claims. Apart from compensation, a remedial package under the redress scheme may provide for future care and rehabilitation, explanations and apologies.
88. See Compensation culture: NHS Redress Bill, Fifth Report of Session 2005-06, (HC 1009, March 2006) at para 11. The projected increase in claims of 'anything from 2,200 to 19,500 a year' prompted the Committee, at para 12, to renew its call for the scheme to be 'piloted before national roll out'.
89. See Table 1, showing the numbers for each type of claim and their outcome.
90. Had Kent been included in the data set it would have been a Category 2 'late arrival' claim.
91. See Section IIIE, Arrival Targets and Breach of Duty.
92. See Section IIID, Outcome of claims.
93. See supra n 25.
94. The decision of the Court of Appeal, supra n 4, was handed down in February 2000.
95. The claim alleged delay in arrival to treat a pregnant woman with a prolapsed cord resulting in her child suffering cerebral palsy. Though a decision to admit liability and settle had been taken earlier, at the time the data spreadsheet was compiled in December 2004 the claim was still classed as outstanding, perhaps because of uncertainties about prognosis and quantum.
96. Between 1995 and 1999, there were 9 'delay' claims, while between 2000 and 2004, there were 43 (82.7% of the total). However, 218 of the overall total of 263 claims (the vast majority of which did not involve Kent-like allegations at all) similarly occurred in the second 5-year period, accounting for 82.9% of the total.
97. It may be that ambulance services and the NHSLA did not take the 'no duty' point until prompted by the decision in favour of fire brigades in 1999, see supra n 27, and that here (as with claims against other parts of the NHS) breach and causation have always been the dominant litigation issues.
98. See supra n 28 and text.
99. See Mulcahy, supra n 52, Chapter 4. In contrast, the NHS nowadays claims to concentrate increasingly on identifying the systemic causes of adverse incidents rather than operating a 'blame culture' focusing on the personal fault of individual members of staff.
100. See supra n 25 at 447.
101. A minority of these claims involved transport ambulances or community care vehicles rather than emergency ambulances staffed by paramedics. According to a report by the National Audit Office, A Safer Place for Patients: Learning to Improve Patient Safety (NAO, 2005), HC 456, at 32, across the NHS generally, patient falls are more routinely reported than medication errors or adverse drug reactions. Because falls unlike some medication errors) are obvious to patients, they might also be expected to result in more complaints and, hence, claims.
102. As to the causes and frequency of medication errors see a report by the Chief Pharmaceutical Officer, Building a Safer NHS for Patients, Improving medication safety (Department of Health, 2004).
103. See Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582. This prodefendant standard is relevant only to allegations or Professional negligence. It is not available where a simple want of ordinary care is alleged, such as careless driving or dropping a stretcher.
104. Claims against ambulance trusts are less successful than claims against the NHS as a whole. Between April 1995 and March 2006, some 47% of all medical negligence claims against the NHS were settled in favour of claimants, 38% were unsuccessful, while 15% were outstanding. If we subtract the outstanding claims from that total, the percentage of winners to losers is 55-45%. See Factsheet: Information on Claims (NHSLA, July 2006).
105. In 1999-2000, the average successful medical negligence claim cost the NHS £87,000 with £27,000 defence costs (excluding brain damage cases, which represent 5% of claims but 60% of NHS litigation expenditure), see National Audit Office, Handling Clinical Negligence Claims in England (NAO, 2001) HC 403, at para 2.20.
106. According to Making Amends, supra n 52 at para 46, damages across all types of claim averaged £111,595 in the mid-1990s rising to £259,038 by 2002.
107. One of the claims (concerning a young mother who suffered serious brain damage) was listed in the spreadsheet as outstanding, but appears to have been settled subsequently out-of-court for a reported £2.8 million, see The Times, 6 December 2005 ('Mother wins £2.8 m after suicide bid').
108. See Table 2.
109. 2 = 2.3 with one degree of freedom. Probability (p) = 0.013.
110. See Gregg v. Scott [2004] U.K.H.L. 41, confirming that claimants, ordinarily, must prove their loss on the balance of probabilities. Consequently, a failure to diagnose a patient's cancer reasonably promptly, so reducing his chances of a cure from 42% to 25%, was not actionable.
111. The rule is less strict for patients who complain they were not properly advised of treatment risks before giving consent, see Chester v. Afshar [2004] U.K.H.L. 41, holding liable a neurosurgeon despite the fact that the patient might, if warned, have consented to the operation (and hence have run the inherent risks) at a later date.
112. For a discussion of these decisions, see S. Green, 'Coherence of Medical Negligence Cases: A Game of Doctors and Purses' (2006) 14 Med. L. Rev. 1.
113. The official figures suggest that the proportion of timely arrivals now exceeds the targets and is rising. See Ambulance Services, England: 2004-05, (NHS Health and Social Care Information Centre, 2005), n 1. However, there are doubts about both the reliability and the utility of response time data.
114. See Commission for Health Improvement, What CHI Has Found In: Ambulance Trusts (CHI, 2003).
115. The Audit Commission has pointed out that different ambulance trusts not only face very different geography, populations and economies of scale, but also different levels of revenue funding and capital investment, see A Life in the Fast Lane (Audit Commission, 1998) at 12.
116. See P.T. Pons and V.J. Markovchick, 'Eight minutes or less: Does the ambulance response time guideline impact trauma patient outcome?' (2002) 23 Journal of Emergency Medicine 43, pointing out that clinical 'justification of specific time criteria for specific medical or traumatic emergencies is lacking'.
117. A CHI report in 2003 found that the 'eight minute' target tended to divert attention from other targets (such as dealing with GP urgent calls) and encouraged 'gaming and misrepresentation'. It concluded that 'better measures' of both response times and clinical outcomes are needed, see supra n 75 at 9 and 17.
118. On the potential of performance measures to produce unintended, perverse consequences see S. van Thiel and F. L. Leeuw, 'The Performance Paradox in the Public Sector' (2002) 25 Public Performance and Management Review 267.
119. Unreliable information caused by communication problems, for example, may delay the dispatch of an ambulance or result in a caller being given inappropriate first aid advice. See J. Higgins et al., 'Communication Difficulties During 999 Ambulance Calls: Observational Study' (2001) 323 British Medical Journal 781.
120. Maybe 40% or 999 calls do not justify an emergency response. See H. Snooks et al., 'Appropriateness of Use of Emergency Ambulances' (1998) 15 Journal of Accident and Emergency Medicine 212.
121. Whether defendants might, additionally, be able to rely on a 'no breach' argument by citing systemic difficulties caused by under-funding is both uncertain and controversial. See C. Witting, 'National Health Service Rationing: Implications for the Standard of Care in Negligence' (2001) 21 O.J.L.S 443.
122. Contrast the potential of clinical guidelines to influence how the standard of medical care might be interpreted in the courts. See A. Samanta et al., 'The Role of Clinical Guidelines in Medical Negligence Litigation: A Shift from the Bolam Standard?' (2006) 14 Med. L. Rev. 321 cautiously recommending their use.
123. See too Nicolson v. States of Jersey Health and Social Services Committee [2004] J.C.A. 203,
124. noted by T. Hanson (2005) 13 Med. L. Rev. 268, where despite a failure to meet the professionally recommended 'ideal' timeframe for a decision about a caesarean delivery the defendants were declared not to have been negligent on the facts.
125. The 1974 ORCON target (arrival within 14 minutes at 95% of 999 calls) was a 'minor area of dispute'.
126. See supra n 25 at 445-46.
127. [2000] E.W.H.C. 894.
128. Application for leave to appeal refused [2002] E.W.C.A. Civ. 1250.
129. M. de Navarro Q.C., 'Casenote', Medical Litigation, October 2002, 14 at 15.
130. The Compensation Act 2006, s.1 allows (without requiring) courts deciding breach questions to consider whether imposing liability might prevent or discourage a 'desirable activity'. Whether this will help ambulance service or other healthcare providers better defend medical negligence claims may be doubted, since, arguably, it merely restates the common law position, see n 91 and text. To the extent that greater openness is now an NHS goal, defendants may be more encouraged by s.2 which declares that an apology or offer of treatment or other redress 'shall not of itself' amount to an admission of liability.
131. See supra n 25 at 453.
132. In Capital and Counties, supra n 2 at 105, Stuart-Smith L.J. said that in a rescue context, Bolam imposes a 'very high threshold test' of liability.
133. See too Lord Clyde in Phelps v. Hillingdon London Borough Council [2001] 2 A.C. 619 at 672 placing reliance on Bolam as a robust bulwark against unmeritorious claims.
134. See supra n 4 at 53.
135. [2002] E.W.C.A. Civ. 953.
136. See too Watt v. Hertfordshire County Council [1954] 1 W.L.R. 835.
137. Buxton L.J. in King, ibid. at [48] nonetheless said that Watt may need 'reconsideration' in light of
138. Ogwo v. Taylor [1988] 1 A.C. 431.
139. See supra n 4 at 53.
140. See K. Williams, 'State of fear: Britain's "Compensation Culture" Reviewed' (2005) 25 L.S. 499
141. and R. Lewis et al., 'Tort Personal Injury Claims Statistics: Is There a Compensation Culture in the United Kingdom?' (2006) 30 J.P.I.L. 87.
142. While estimates vary as to the ratio of claims to adverse events, it may be that only one negligently damaged patient per hundred claims, see Pleasence et al., supra n 52.
143. See too the evidence of M. Jones given to the House of Commons Constitutional Affairs Committee enquiry, Compensation Culture, Third Report of Session 2005-06, H.C. 754-II, Ev 187 at paras 22-34.
144. Cf. Health Minister, Jane Kennedy, inaccurately and unhelpfully justifying the introduction of the NHS Redress Bill, see supra n 54 and text, as an 'important step in preventing a US-style litigation culture', Department of Health press release 2005/0349, 13 October 2005.
145. Percentages derived from Factsheet 3: Information on claims (NHSLA, July 2006) covering the period from April 1995 to 31 March 2006. In total, medical negligence claims cost less than 1% of the overall budget of the NHS.
146. See Section IIID, Outcome of Claims.
147. See Sections IIIC, Types of Claim.
148. See, for example, J.W. Hughes and E.A. Synder, 'Evaluating Medical Malpractice Reforms' (1989) 7 Contemporary Policy Issues 83 on the methodological difficulties of evaluating the deterrent or other effects of legal reform strategies.
149. See NAO report, supra n 67 at 10.
150. Where only anecdotal evidence is available, it is likely that the practical effects of a liability rule will be poorly understood. Yet, as Lord Steyn noted in Eastwood v. Magnox Electric plc [20U4] U.K.H.L. 35 at [39], 'the way in which a rule or principle operates in the real world is one of the surest tests of its soundness'.
151. Any impact study would need to evaluate the influence of a wide range of other factors, including the gradual introduction of better risk management strategies across the NHS. See, for example, Risk Management Standard for the Provision of Pre-Hospital Care in the Ambulance Service (NHSLA, 2006). Apart from other hoped for benefits, a trust meeting these standards is entitled to a discount on the CNST contribution it pays.