By Ken Thomas, medical negligence specialist and Welsh Lawyer of the Year at Harding Evans.

The Assembly Government, in the first of the Measures allowed by its new powers, has opened the way for speedier handling of claims by patients against the NHS in Wales. Here medical negligence lawyer Ken Thomas of Harding Evans Solicitors looks at whether the new system will make things better for patients or the NHS.

Based on Gladstone’s assertion that ‘justice delayed is justice denied,’ one would have to welcome the principle of the Assembly’s plan for a simplified scheme to resolve lower-value negligence claims, without having to go to court.

As a specialist lawyer who has handled hundreds of negligence claims in Wales and beyond over the past 14 years, I know only too well how the high stakes and complexity of such cases can result in seemingly endless proceedings.

This can be particularly heartbreaking in cases where someone has suffered extensive harm that has not only damaged them physically and emotionally but has impacted hugely on their family life and ability to work.

On this basis, a new system providing swift remedies that avoid the courts should be a step in the right direction.

That said, on closer analysis, two fundamental questions spring to mind. Firstly, will the new scheme actually save the Welsh NHS money? Secondly, can any such scheme be seen to deliver real justice and adequate compensation to genuine victims?

On the first issue, the Government’s own actuaries already fear that it could, in fact, result in the health service having to fork out several million pounds more each year than it does now.

A simpler system will perhaps persuade some victims, who might otherwise lack the stomach for a court battle, to lodge claims for compensation. That might be seen as a positive if the NHS bodies at fault are made aware of their failings and learn from them.

Against that, however, more claims would probably soak up vast amounts of management time.

Turning to the second issue, will the new process of handling claims within the NHS deliver transparently fair outcomes and compensate victims adequately? While protecting the public purse is important, if that means cutting corners at the expense of patient justice, many would say that is a backwards step.

Here, much more detail is needed. Who will investigate the complaint and how would decisions be made on whether or not compensation is to follow? Such detail regarding the operation of the scheme will be crucial to its ultimate credibility.

The Assembly has referred to the new system as ‘NHS-led’ but there would be something fundamentally uncomfortable about the NHS acting as a judge and jury in its own cases, if that is what is intended. The onus is on the Assembly Government to build in safeguards that are independent of the NHS to ensure there is public confidence in the process.

Here, independent professional input will be crucial. Before assessing whether or not the scheme is acceptable, we will have to wait and see whether it is proposed that medical experts, independent of the Welsh NHS, are to be asked for their opinion.

I would also argue that any attempt to exclude legal representatives from the process should be treated with suspicion. Precursor proposals in England have certainly discouraged patients from engaging solicitors. However past experience tells me that, without legal advice, patients frequently under-settle their claims and grave injustices can occur.

Although the new system is targeted at ‘lower value’ cases, possibly those worth up to £20,000, we must not lose sight of the fact that, whether the award is for £1,000, £5,000 or £10,000, that is still an awful lot of money to many people.

The new scheme is not intended to be compulsory. The acid test will be in how many more patients come forward to complain or claim when the new scheme is in place, and how many of them actually opt to use the new procedure.

While the vast majority of medical procedures are conducted competently and successfully by skilled and dedicated professionals, when things do go wrong they can have catastrophic consequences for people’s lives.

Whatever the intentions of the new system it will only deserve public support if it can ensure these victims are fully acknowledged and properly compensated.

Ken Thomas is a partner in Harding Evans Solicitors specialising exclusively in medical negligence cases.