5.2.2 The NHSLA
TheNHSLAwassetupundersection11oftheNHSAct1977anditsprincipaltask
is to administer schemes set up under section 21 of the National Health Service
andCommunityCareAct1990,whichhavebeenmentionedabove[11].Thereare
anumber of schemes which are managed by the NHSLA to control clinical risk,
personalinjury,property,etc.TheClinicalNegligenceSchemeforTrusts.CNST)
and the ELS .Existing Liability Scheme) are the two main schemes for our
purposes. The CNST was introduced in 1995 as a voluntary scheme to limit the
liability of member Trusts for clinical negligence claims where the incident
occurred after March 1995. Trusts fund the scheme by paying the equivalent of
premiums, and in return receive assistance with costs of cases above a certain
amount ± their `excess'. The ELS covers all NHS bodies' liabilities for claims for
incidents that occurred before April 1995, and is funded by the Department of
Health.Upto1April2000itcoveredonlythoseclaimswithasettlementvalueof
over £10,000 [2]. A condition of entering the CNST scheme is that NHS Trusts
haveregardtoprinciplesofgoodclinicalriskmanagement[3].Twootherschemes
managed by the NHSLA are the Liabilities to Third Parties Scheme and the
Property Expenses Scheme [12].
TheNHSLAinApril1998appointed apanel of18defencesolicitorstohandle
litigationclaimsbroughtagainstNHSbodies.PreviouslytheNHSLAhadtowork
with nearly 100 defence firms. The rationale for the reduction was to enable the
NHSLAtomanagedefencelitigationpracticesmoreeffectivelybyhavingasmaller
number of firms. Quality of advice and service was also a motivating factor. The
NHSLA chief executive, Stephen Walker, has stated:
`In addition to volume, it must be said that the range of quality across those
practices was also an issue' [13].Quality of NHS advice provision and value for money can again be seen as the
centralissue.TheNHSLAcentralistperceptionofthequalityoflegalservicesthat
Trusts receive differs from that of NHS Trusts generally. A research report
published by the Health Services Management Centre at the University of
Birmingham reveals that, when asked directly about the quality of clinical
negligence legal services they receive from their legal advisers, most NHS Trusts
think they geta good service. Theauthors of the report[14], however, argue that
Trusts are not particularly well equipped to judge the quality of advice they
receive.Thereportoverallfoundtheactualstandardsofservicetobeveryvariable.
Solicitors could make improvements in their standards of communication,
consultation and reporting requirements to NHS Trusts.
The NHSLA stated in its 1999 Report and Accounts [15] that it was optimistic
thatitismovingintherightdirectioninrespectofCNSTclinicalnegligenceclaims
and its panel of approved solicitors:
`Direct instruction of solicitors through the medium of the panel has begun to
suggestthatitwillproveverysuccessful...Thepanelunderstandsthatitsroleis
to support the NHS in the round; not to litigate for the sake of litigation.'64 Nursing Law an dEthics