The trouble with Making Amends

The UK government is proposing to reform fundamentally the way that clinical negligence cases are handled in the health service. In a recent consultation document, Making Amends, the most significant of 19 recommendations is the proposal to widen the circumstances in which brain damaged babies may be compensated (1).

Under the proposals, claimants who were brain damaged in circumstances that were related to or resulting from their birth could receive compensation without having to prove that their brain damage was caused by any negligence. The government describes the proposed scheme as being available ‘when things go wrong’ (p115). This means that claimants will need to show a causal connection between the brain damage and their NHS treatment, but the need to prove that the brain damage was caused by somebody’s medical negligence will go.

Or at least ‘negligence’ as it is currently understood will go. Some commentators on Making Amends have described the government’s proposal as a ‘no-fault’ compensation scheme (2). In fact, the government itself does not describe it this way probably because it realises that fault would still be required. What would change is the nature of required fault.

In order to come within the proposed scheme, the brain-damaged patient would need to show that the brain damage was related to or resulted from the birth under NHS care (p121). In other words, there will still need to be a causal connection between the care given and the brain damage, because the claimant will have to establish that the medical staff could have done something differently in order to have avoided the brain damage.

For example, if the brain damage were caused by the baby’s mother contracting rubella during pregnancy then it would be difficult to show that the brain damage related to or resulted from the birth. The government’s proposal is not to do away with fault entirely, but to reduce the necessary degree of fault to a minimal level.

It is often said that other countries operate no-fault compensation schemes for medical personal injury cases, when what other countries actually operate are schemes where a minimal degree of fault is required. In New Zealand, for example, compensation is payable for personal injury caused by either medical error or medical mishap.

A medical error is defined in conventional medical negligence terms. A medical mishap is defined as when the patient was provided with the correct treatment, properly given, but the patient had a complication which was both severe and rare (ie, would occur in no more than one percent of cases in which the treatment is given). However, liability is avoided under this limb of the test if the patient knows the risk before treatment started.

So the medical mishap limb of the test would be satisfied, for example, if a doctor failed to recognise, and hence explain to the patient, the possibility of an exceedingly rare complication. In such a case the degree of fault would be minimal.

No-fault schemes are rarely schemes that pay compensation entirely in the absence of fault – they are usually schemes that require a reduced standard of fault. So would it matter if the government were to reform medical negligence law for brain damaged babies so as to make it easier for them to receive compensation? Is it wrong to compensate babies for suffering brain damage that results because, to use the government’s words, ‘something went wrong’?

Under negligence law as it was traditionally understood, the claimant needed to show a high degree of fault. As Lord Denning, Master of the Rolls, stated in 1968: ‘A doctor is not to be held negligent simply because something goes wrong…. He is not liable for mischance, or misadventure. Nor is he liable for an error of judgement.… He is only liable if he falls below the standard of a reasonably competent practitioner in his field – so much so that his conduct may fairly be held to be – I will not say deserving of censure, but, at any rate, inexcusable.’(3)

In 1980 Lord Denning repeated his view that an error of judgement in a professional context did not amount to negligence. To test this, he said, ‘one might ask the average competent and careful practitioner: ‘Is this the sort of mistake that you yourself might have made?’ If he says: ‘Yes, even doing the best I could, it might have happened to me’, then it is not negligent.’(4)

With Lord Denning’s approach, a negligence claim would only succeed if the claimant could show that he or she had received a level of medical care that had, for example, been inexcusable or where a mistake had been made that the reasonably competent practitioner could not have made. And by setting a high degree of fault, the law attached liability to the negligent practitioner precisely because the level of care that he or she provided was inexcusable.

In other words, negligence law traditionally provided a mechanism for morally stigmatising the negligent practitioner on the grounds that he or she was morally responsible for harming somebody.

But Lord Denning’s approach to negligence is rarely followed today. In 1981 the House of Lords disagreed with Lord Denning’s view and Lord Fraser suggested that what Lord Denning had meant to say was that an error of judgement was not necessarily negligent. In preference to Lord Denning’s approach the courts have increasingly tended to equate a mistake with a finding of negligence (5).

In their book Error, Medicine and the Law, Alan Merry and Alexander McCall Smith note that ‘all too often the yardstick is taken to be the person who is capable of meeting a high standard of competence, awareness, care etc, all the time. Such a person is unlikely to be human.’(6) Instead of morally stigmatising the ‘negligent’ practitioner, many practitioners will today respond to a finding of negligence against one of their colleagues with the phrase: ‘there but for the grace of God go I.’

If negligence can exist in the absence of any moral culpability and moral stigma, then fault-based compensation schemes become difficult to justify. After all, if one child is brain damaged merely because a doctor made the sort of mistake that any doctor could have made then it seems irrational that that child should be entitled to compensation, while a child with a similar condition should get no compensation where his or her brain damage was caused because the mother had rubella during pregnancy.

Because negligence law has in recent years been divorced from any meaningful sense of fault no-fault compensation schemes have become popular. The British Medical Association (BMA), for example, recently came out in support of a full system of no-fault compensation (7), and the government could only object to a comprehensive no-fault compensation scheme on the basis that it would be unaffordable (p112).

But the government is proposing a scheme that may develop a dynamic of its own. If compensation for brain damaged babies does not require any moral culpability, then why not extend the scheme to all medical negligence cases? Indeed why not extend it to all negligence cases? Making Amends may provide a powerful and unwelcome boost to our compensation culture. If a meaningful degree of fault were restored to the law of negligence, then the tort could retain its proper social function of holding people morally responsible for causing harm.

Jon Holbrook is a barrister. Email jon.holbrook@btinternet.com

(1) Making Amends: A consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS (.pdf), A report by the Chief Medical Officer, Department of Health, June 2003

(2) Plans to speed-up NHS compensation claims, Patrick Butler, Guardian, 30 June 2003

(3) Hucks v Cole (1968), [1993] 4 Med LR 393, @396, CA

(4) Whitehouse v Jordan [1980] 1 All ER 650, CA

(5) Whitehouse v Jordan [1981] 1 All ER 267, HL

(6) Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, Cambridge University Press, 2001, p173. Buy this book from Amazon (UK)

(7) NHS staff should inform patients of negligent acts (.pdf), Clare Dyer, BMJ, 5 July 2003