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i) This essay will evaluate Williams argument in his study: Litigation against English NHS Ambulance Services and the Rule in Kent v Griffiths.1 Legal research follows two broad traditions. 2 The first is doctrinal research, otherwise known as black-letter law.3 It can be defined in simple terms as research which asks what the law is in a particular area4 and relies on traditional methods of studying law which includes cases and legislation. The second is an empirical approach which contributes to an understanding of how legal decision-making or legal enforcement really works outside the statute or text book.5 Empirical research is motivated by a conviction that legal phenomena...should be understood not only in normative terms but also as social practices of political, economic and ethical significance.6 Williams employs a socio-legal analysis7 to challenge the viewpoints expressed after the decision of Kent v Griffiths.8 The study illuminates many aspects of the law's meaning, operation and impact,9 thereby building to an increased understanding of this legal area and its social context.10 McConville and Chui have identified that empirical and doctrinal research are complementary11 to each other. This really seems to be the case given that Williams uses a combination of both methods. He begins and sets the scene by determining the existing law in a particular area12 (doctrinal). He then follows by evaluating the affects of the law in question; whether the ruling in

Williams, K., Litigation against English NHS Ambulance Services and the Rule in Kent v Griffiths, (2007) Medical Law Review 153-175. 2 McConville, M., and Hong Chui, W., Research Methods for Law (Edinburgh University Press, 2007) p1. 3 Ibid 4 Ibid, p19. 5 Nuffield Enquiry on Empirical Legal Research, Law in the Real World: Improving our Understanding of how Law Works (Nuffield 2006) http://www.ucl.ac.uk/laws/sociolegal/empirical/docs/inquiry_report.pdf 6 http://www.oup.com/us/catalog/general/subject/Law/?view=usa&ci=9780199542475 7 McConville, M., and Hong Chui, W., (n 2), p6. 8 Kent v Griffiths [2001] Q.B. 36 C.A 9 http://www.oup.com/us/catalog/general/subject/Law/?view=usa&ci=9780199542475 10 Nuffield Enquiry on Empirical Legal Research, (n 5) 11 McConville, M., and Hong Chui, W., (n 2), p6. 12 Ibid, p20. 1

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Kent13 has led to a litigation crisis.14 In using these two approaches, Williams strengthens his argument. Finks requirements for a thorough literature review15 will be applied to help analyse the authors argument. Further, given that the data within the study is purely quantitative ('19.8%),16 reference will be made to Brymans prominent criteria17 for good quantitative social research. The researcher should begin by identifying the specific research questions,18 this is the first of Finks requirements. Graziano and Raulin assert that without good questions, research is pointless.19 It is clear that the article questions how far Kents recognition of a duty of medical rescue has been translated into actual litigation against ambulance services.20 Socio-legal scholarship employs a wide range of applied social science methods including quantitative and qualitative research.21 It has already been recognised that the former, which refers to statistical and numerical analysis, is evident within the article. Dobinson and Johns argue that doctrinal research is qualitative on the basis that such research is a process of selecting and weighing materials.22 However, they also suggest that it is neither a quantitative nor qualitative23 method. On this note, the latter, which Flick describes as a method that works with text24 and relates to non-numerical data,25 is not employed by Williams.

13 14

Kent v Griffiths [2001] Q.B. 36 C.A Williams, K., (n 1), p174. 15 Dobinson, I., and Johns F., Doctrinal Legal Research in McConville, M., and Hong Chui, (n 2), p22. 16 Williams, K., (n 1), p165. 17 Bryman, A., Social Research Methods (OUP, 2004), p28. 18 Dobinson, I., and Johns F., (n 16), p33. 19 A. M. Graziano and M. L. Raulin, Research Methods, A Process Of Inquiry, (7th edn, Boston ; London : Allyn & Bacon, Pearson, 2010) p51. 20 Williams, K., (n 1), p161. 21 McConville, M., and Hong Chui, W., (n 2), p4. 22 Dobinson, I., and Johns F., (n 16), p40. 23 Ibid 24 Uwe Flick, An Introduction To Qualitative Research, (4th edn, London, SAGE, 2009) 25 Trochim, Types of Data: http://www.socialresearchmethods.net/kb/datatype.htm 2

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An econometric secondary analysis is conducted by the author, this is the analysis of data that others have collected 26(in this case, the NHSLA).27 One prominent form of such data is official statistics28 which represents the quantitative data in the study. There are advantages to Williams analytical method, including the prospect of having access to good quality data,29 but along with them come numerous disadvantages. Official statistics represent a form of unobtrusive method which is an observation measure that directly removes the observer from the set of interactions or events being studied30 (Williams, however, appears to remain focused on his aim). In addition, there can be unease about the reliability and validity of certain types of official data.31 Secondly, Fink requires a defined and justified sample.32 In exploring the data provided by a single source, it is arguable whether this criterion has been satisfied. Williams could have looked at data from additional sources, such as litigation and judicial statistics to make the sample more representative and the research more externally valid. Further, the data (which included details such as dates and a synopsis of the events)33 is described as basic.34 It can therefore be disputed whether King and Epsteins second rule: to collect as much data as is feasible35 is met. Here, it must be mentioned that although this information appears to be qualitative, Williams analyses the data as if it was numerical; he employs a solely quantitative analysis. Ultimately, whilst more information would result in a more detailed analysis, it may not have been preferred because it would have incurred more time and cost.

26 27

Bryman, A., (n 17), p201. Williams, K., (n 1), p161. 28 Bryman, A., (n 17), p201. 29 Ibid, p202. 30 Denzin 1970 in A. Bryman, Secondary analysis and official statistics in (n 17), p215. 31 Ibid 32 Dobinson, I., and Johns F., (n 16), p33. 33 Williams, K., (n 1), p162. 34 Ibid 35 Dobinson, I., and Johns F., (n 16), p33. 3

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Valid data collection36 and appropriate analytical methods37 are next in Finks criteria. In using a quantitative method to denote whether claims against the ambulance service has increased, the latter has been met. Alternatively, integrating38 both quantitative and qualitative designs would have led to more convincing results; Bryman argues that triangulation (the use of more than one method) enhances confidence in findings.39 In addition, Williams questions the reliability of the data, he states that the NHSLA does not have reliable data for below excess claims, which were dealt with...before...April 2002.40 However, it would appear that this has not distorted the reliability because Williams does not identify any significant differences in the number of below excess41 claims after 2002. This additional point strengthens his argument. Further, it is noted that 3 claims out of the original 266 were excluded after closer inspection revealed they had not been brought against the ambulance trusts.42 This figure is very small; even if these claims werent spotted and were included in the data, they would have placed insignificant effects on the conclusions. On the other hand however, it may be that Williams has included many unnoticed claims which werent brought against ambulance trusts in his study. This poses severe concerns for the validity of the data used and it would appear that Finks second requirement has not been achieved. Here, it must again be stressed that in using data from alternative sources, Williams would have eliminated this concern. Finally, Fink suggests that the researcher must make interpretations based on the data.43 To answer the research questions, an overview of the types and outcomes of claims were made. The claims are also categorised, making
36 37

Ibid Ibid 38 Miles and Hubweman have outlined four types of designs for integrating these two approaches in one design, see Miles, M. B. And Huberman, A.M., Qualitative Data Analysis: A Sourcebook of New Methods (2nd edn, Newbury Park, CA:SAGE, 1994) 39 Bryman, A., On Triangulation, at: http://www.referenceworld.com/sage/socialscience/triangulation.pdf 40 Williams, K., (n 1), p161, 162. 41 Ibid, p161. 42 Ibid 43 Dobinson, I., and Johns F., (n 16), p33. 4

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it easier for formulating conclusions. Williams provides details on the individual categories which included unclassified, because of inadequate case information44 and case settled, amount unknown/ not recorded.45 Analysis of the types of claims46 indicated that only 19.8% of all claims involved some element of delay,47 whilst 202 out of the 263 claims related to instances of non-delay.48 It is clear that Kent has not prompted a rash of novel delay claims; nor has it been responsible for a step change in claiming behaviour.49 Observation also showed that there are virtually no allegations of organisational failure associated with such matters as understaffing...or inadequate expenditure.50This is explained by stating that these shortcomings are less evident to potential claimants,51 the finding is also backed up with doctrinal reference. Williams notes that the judge in Kent52 found it unnecessary to make findings in organisational fault53 which supports his earlier point that it is very difficult to successfully challenge decisions about funding or the allocation of scarce resources.54 Throughout, Williams backs his arguments in this way. In addition, the number of delay claims went up directly in line with the increase in non-delay claims.55 In identifying this trend over time, Williams has conducted a longitudinal analysis.56 The data concerning the outcome of claims57provided further answers; the damages paid...totalled just over 2 million,58 suggesting that successful claims against the ambulance trusts do not represent a crippling burden on
44 45

Williams, K., (n 1), p164. Ibid, p167. 46 Ibid, p164. 47 Ibid, p165. 48 Ibid 49 Ibid, p165, 166. 50 Ibid, p166. 51 Ibid 52 Kent v Griffiths [2001] Q.B. 36 C.A 53 Williams, K., (n 1), p166. 54 Ibid 55 Ibid, p165. 56 Bryman, A., (n 17), p209. 57 Williams, K., (n 1), p167. 58 Ibid, p169. 5

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NHS resources.59 Additionally, 80.5% of delay claims with known outcomes failed, compared to 67.6% of non-delay claims.60 These statistics illustrate that it is hard to succeed in such cases and it is suggested that proof of causation is a particular difficulty.61 Indeed, it is necessary to consider the reliability of these inferences. In order to establish whether the data can be relied on, one must ask whether the research is replicable. Bryman states that if there was a failure to replicate...serious questions would be raised about the validity62 of the findings. Williams appears to have complied with King and Epsteins third rule which is to record the process by which data come to be observed63 because it is clear what procedures he has undertaken. For example, he makes it obvious how and why he splits the claims into categories. External validity is concerned with whether the results...can be generalized beyond the specific research context.64 The study is very specific in that it focuses only on litigation against the ambulance service and the practical impacts on Kent,65 this means that it cannot be applied to other contexts. Further, King and Epstein enunciate that researchers should collect data in a manner that avoids selection bias.66 In summarising all claims across a 10year period,67 the data is nationally representative. However, numerous concerns about the data, which have been previously mentioned, reveal that the study is not fully and wholly externally valid. Internal validity is the...truth about inferences regarding cause-effect.68 The author explains numerous problems with the data and in stating that a total of

59 60

Ibid Ibid 61 Ibid, p170. 62 Bryman, A, (n 17), p77. 63 Dobinson, I., and Johns F., (n 16), p33. 64 Bryman, A, (n 17), p29. 65 Kent v Griffiths [2001] Q.B. 36 C.A 66 L. Epstein and G. King, Empirical Research and the Goals of Legal Scholarship: The Rules of Inference (2002) 69 University of Chicago Law Review, 1. 67 Williams, K., (n 1), p161. 68 http://www.socialresearchmethods.net/kb/intval.htm 6

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263 claims...seems surprisingly modest,69 it is questionable whether there is confidence in the...causal inferences.70 Allocating claims to categories was less than straightforward71 for the author. He resorted to allocating ambiguous claims to the following categories: unclassified, because of inadequate case information72 and claim settled, amount unknown/not recorded.73 Ultimately, these claims should have been allocated to one of the other categories; this would change the statistics and overall conclusions. It must be affirmed however, that if additional information was provided in regards to these claims (allowing them to be placed in the correct detailed category) it would not make a compelling difference to the conclusions. There are only 9 unclassified claims out of 263 under the analysis regarding the types of claims,74 similarly, only 4 claims out of the 263 are placed in the amount unknown/ not recorded75 category. These figures are minimal. As the majority of claims have been successfully categorised it can therefore be said that the concluded trend is fairly convincing. Measurement (or construct) validity76 is an important factor to consider. This is concerned with whether a measure really does reflect the concept that it is supposed to be denoting.77 Here, it must be noted the author is not completely confident that the NHSLAs database search has correctly identified...all ambulance claims.78 His lack of trust presents concerns over the quantitative data; it is unlikely that Byrmans validity79 criterion is fulfilled. Finally, attention must be paid to good ethical practice in empirical research. Researchers have a responsibility for maintaining the reputation of sociolegal studies.80 We can only assume that Williams has abided by the rule that
69 70

Williams, K., (n 1), p163. Bryman, A, (n 17), p76. 71 Williams, K., (n 1), p164. 72 Ibid, p164. 73 Ibid, p167. 74 Ibid, p164. 75 Ibid, p167. 76 Bryman, A, (n 17), p29. 77 Ibid 78 Williams, K., (n 12), p162. 79 Bryman, A, (n 17), p28. 80 Principle 2, Principle 2.1.1, Socio-Legal Studies Association (SLSA), Statement of Principles of Ethical Research Practice, January 2009. 7

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members should report their findings accurately and truthfully.81 Further, researchers should have due regard82 for other peoples research.83 It is explicitly stated in the article that the data was kindly provided84 by the NHSLA. Their data collection has clearly been acknowledged. Finally, the confidentiality of data disclosed...by other researchers85 should be respected. The fact that Williams is provided with an anonymised summary86 of claims proves that this principle has been complied with. ii) The view before the analysis was that Kent87 had led to the diversion of precious financial resources from the treatment and care of patients to compensation claims.88 Williams aim was not to disprove this belief, but to essentially examine whether it is actually justified. The empirical study shows that the theoretically radical imposition in Kent...of a duty to respond... resulted in few claims, poor success rates and low payouts, contrary to some fearful predictions.89 Research has shown that similar empirical studies in this legal area are rare. Previous studies relating to this area of law have generally followed doctrinal designs to help enhance understandings in this field.90 Williams however, examines the law with a unique outlook, he adds an empirical element to the
81

Principle 2.1.1, Socio-Legal Studies Association (SLSA), Statement of Principles of Ethical Research Practice, January 2009. 82 Principle 2.2.2, Socio-Legal Studies Association (SLSA), Statement of Principles of Ethical Research Practice, January 2009. 83 Ibid 84 Williams, K., (n 1), p161. 85 Principle 8.5, Socio-Legal Studies Association (SLSA), Statement of Principles of Ethical Research Practice, January 2009. 86 Williams, K., (n 1), p161. 87 Kent v Griffiths [2001] Q.B. 36 C.A 88 A. Grubb, Commentary. Medical Negligence: Liability of Ambulance Service [2000] Med. L. Rev. 349 at 350. 89 K. Williams, Emergency Services to the Rescue? (J.P.I. Law 2008, 3, 202-208) p208.
90

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 and Tom Hickman, And thats MagicMaking public bodies liable for failure to confer benefits C.L.J. 2000, 59(3), 432-435 8

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laws understanding by placing emphasis on the relationship between the particular area of law (litigation against the NHS ambulance service) and its effects on society.91 In addition, the article adds to the understanding of wider debates in law. It assesses whether a so-called compensation culture92 exists. Many academics have researched this area and have produced studies to show whether legal decisions are effectively creating this idea of a blame culture.93 Mullender for example, has confirmed that Judges and others assume that blame culture is a live problem. But we cannot be sure that this problem actually exists because the relevant data are equivocal.94 Williams concludes saying that it cannot plausibly be said that the NHS faces a litigation crisis.95 By saying that there is no such culture,96 the study contributes to the understanding of the floodgates97 debate. Various weaknesses in the evaluation have been acknowledged. However, strengths are evident and the uses of doctrinal sources support the findings; the case of Barry98 shows that the floodgates issue has not arisen because proving breach is a real hurdle.99 Despite numerous problems with the data, the overall argument seems to be convincing. By challenging the adverse views that arose when the courts removed the extraordinary rule...that the public rescue services have no duty to rescue anyone,100 the study has provided an explanation of the practical impact of Kent.101 Further research into this area will have to be conducted in order to

91 92

K. Williams, (n 1) Ibid, p174. 93 Richard Mullender, Negligence law and blame culture: a critical response to a possible problem P.N. 2006, 22(1), 2-31, p2. 94 Ibid, p29. 95 Williams, K., (n 1), p174. 96 Ibid 97 Ibid, p159. 98 Barry v NHS Litigation Authority [2000] E. W. H. C. 894, [2002] E.W.C.A. Civ. 1250. 99 M. De Navarro Q.C., Casenote, Medical Litigation, October 2002, 14 at 15. 100 D. Howarth, Can we afford to compensate our emergency services workers?, Journal of Local Government Law (2002) 101 Williams, K., (n 1), p175. 9

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provide an up-to-date perspective.102 The author has opened the door for future researchers to do this and make additional conclusions.

Bibliography Books:
1. Arlene Fink, Conducting Research Literature Reviews, From the

Internet to Paper (2nd edition, Sage Publications, London 2005).

102

The article states that the NHS redress scheme will make it easier to claim compensation; this scheme was not fully operational until a year or so after the study was published. See footnote 55 and p164 in Williams, K., (n 1) 10

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2. Alan Bryman, Quantity and Quality in Social Research (London:

Routledge, 1988).
3. A. M. Graziano and M. L. Raulin, Research Methods, A Process of

Inquiry (7th edition, Allyn & Bacon, London 2010).

4. Catherine Hakim, Research Design, successful designs for social and

economic research, (2nd edition, Routledge, London 2000).

5. A. Bryman and Robert. G. Burgess Analyzing Qualitative Data

(London : Routledge, 1994).

6. Tuffte, Edward. R., The Visual Display of Quantitative Information

(Cheshire, Conn.: Graphics Press, 2001).

7. Bryman, A., Social Research Methods (OUP, 2004). 8. McConville, M. And Hong Chui, W., Research Methods for Law

(Edinburgh University Press, 2007).

9. Miles, M. B. And Huberman, A.M., Qualitative Data Analysis: A

Sourcebook of New Methods (2nd edition, Newbury Park, CA:SAGE, 1994)

10. Dobinson, I., and Johns F., Doctrinal Legal Research in Research

Methods for Law in McConville, M., and Hong Chui, W. (eds.) (Edinburgh University Press, 2007) p22.
11. May, T., Social Research: Issues, Methods and Process

(Buckingham: Open University Press, 2001)

12. Uwe Flick, An Introduction To Qualitative Research, (4th edn, London,

SAGE, 2009) Articles:

13. Williams, K., Litigation against English NHS Ambulance Services and

the Rule in Kent v Griffiths, (2007) Medical Law Review 153-175.

14. A. Grubb, Commentary. Medical Negligence: Liability of Ambulance

Service [2000] Med. L. Rev. 349 at 350.

15. Kevin Williams, Emergency services to the rescue? Journal of

Personal Injury Law (2008).

16. M. De Navarro Q.C., Casenote, Medical Litigation, October 2002, 14

at 15.
17. Tom Hickman, And thats Magic- Making public bodies liable for failure

to confer benefits C.L.J. 2000, 59(3), 432-435

11

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18. F.H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability

(1908) University of Pennsylvania Law Review 217 at 219

19. D. Howarth, Can we afford to compensate our emergency services

workers? Journal of Local Government Law (2002).

20. L. Epstein and G. King, Empirical Research and the Goals of Legal

Scholarship: The Rules of Inference (2002) 69 University of Chicago Law Review, 1.

21. Richard Mullender, Negligence law and blame culture: a critical

response to a possible problem P.N. 2006, 22(1), 2-31, p2. Cases:

22. Kent v Griffiths [2001] Q.B. 36 C.A. 23. Barry v NHS Litigation Authority [2000] E. W. H. C. 894, [2002]

E.W.C.A. Civ. 1250. Websites: 24. http://www.socialresearchmethods.net/kb/intval.htm

25. Bryman, A., On Triangulation, at:

http://www.referenceworld.com/sage/socialscience/triangulation.pdf
26. Nuffield Enquiry on Empirical Legal Research, Law in the Real World:

Improving our Understanding of how Law Works (Nuffield 2006) http://www.ucl.ac.uk/laws/socio-legal/empirical/docs/inquiry_report.pdf 27. http://www.oup.com/us/catalog/general/subject/Law/? view=usa&ci=9780199542475
28. Trochim, Types of Data:

http://www.socialresearchmethods.net/kb/datatype.htm Other: 29. Socio-Legal Studies Association (SLSA), Statement of Principles of Ethical Research Practice, January 2009.

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