Page last updated at 00:27 GMT, Thursday, 8 October 2009 01:27 UK

NHS turns to no win, no fee cases

By Nick Triggle
Health reporter, BBC News

Money generic
No win, no fee has been blamed for rising legal fees the NHS pays out

The NHS is turning to no win, no fee legal representation - despite being a persistent critic of the practice.

The health service has spent the last few years complaining the no win, no fee culture has led to a rise in costs incurred in medical negligence cases.

But the NHS Counter Fraud Service in England and Wales is now embracing the system after reaching a deal with a law firm to recoup money lost to fraud.

Patient groups accused the NHS of double standards.

They have a right to do it, but I find the attitude quite amusing when they have been so against it
Joyce Robins, of Patient Concern

Half of the medical negligence cases the NHS deals with now are brought on a no win, no fee basis whereby lawyers get paid only if they win the case.

But in return for taking on such a risk, they increase their rates of pay and the practice has led to accusations they have tried to entice patients into legal action.

Nonetheless, the Fraud Service, which supports individual trusts in bringing action, believes the agreement with a law firm called Capsticks will help the service recoup money.

Under the terms of the scheme, Capsticks will provide expert advice and representation at a discounted rate.

About £6m a year is returned to the NHS following legal action against fraudsters - although the true value of the crime is much higher.

Fraud cases can run into hundreds of thousands of pounds with some of the biggest crimes involving companies with NHS contracts or health workers, such as GPs and dentists, incorrectly billing for work.

There are two routes open to the health service when tackling fraud - criminal and civil action - but both are fraught with difficulties.

In criminal cases a judge may not always order the return of funds and even when they do the case may have only been heard on a small sample of the fraud committed.

Civil action, because the evidence required is much lower, is in many ways a more attractive option.

But trusts have often been reluctant to start proceedings because of the time and resources needed.

As a result, there were just eight civil cases launched last year compared with 60 criminal proceedings.


The Fraud Service believes the deal with Capsticks will make it easier to pursue civil action.

No cases have been brought yet as it was only finally signed off during the summer, but there is said to be a great deal of interest from trusts in the service.

Allan Carter, head of operations at the Fraud Service, said: "I don't think we would change our view on no win, no fee."

But he added there was no point ignoring a route that may, in the case of fraud, benefit the NHS.

Private contractors - The health service has contracts with private firms for a variety of services, including cleaning, catering and procurement, which are all open to abuse
Dentists - There is scope in the dental contract for dentists to make out they are treating more NHS patients than they do
Pharmacists - They bill the NHS for each prescription they hand out and while many patients do pay for their medicines the fees do not cover the true cost of the treatment so pharmacists claim that back from the NHS. Again there is scope to cheat the system
GPs - Family doctors are now paid a bonus for hitting certain targets and while there is some independent assessment of whether these have been met, cases have begun to emerge where fraud is suspected

"We want to help get more funds back into the health service and I think this agreement will help us do that."

He also said that no win, no fee would probably represent only a minority of cases taken on under the deal with Capsticks.

As well as no win, no fee, Capsticks will also be operating under the more traditional hourly and fixed rates.

But despite the potential to recoup more money, there was some surprise at the move.

Joyce Robins, of Patient Concern, said: "They have a right to do it, but I find the attitude quite amusing when they have been so against it.

"I think there is a case of double standards here."

And Karen Jennings, head of health at Unison, said the NHS had been "exploited" by the no win, no fee culture.

But she added: "I can understand why they are looking to do this. With the introduction of the market in the NHS, there is going to be more and more scope for fraud."

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