In a Health and Social Care Committee report, NHS Litigation Reform, published this week, the MPs said the prevention of future harm should the ‘biggest priority’ rather than proving individual fault.
The report states the NHS spends £2 billion per year on compensating patients yet ‘lessons are rarely learned and for families accessing compensation is slow, adversarial, stressful, and often bitter.
‘Those who are most in need usually wait the longest and the system often appears arbitrary―based not on need but on whether clinical negligence can be proved.’
According to the committee, £2.17 billion was paid in damages last year compared to about £900m ten years ago. It states: ‘This sum is set to double over the next decade to £4.6 billion, and around a quarter of such costs go not to families but to lawyers. The English NHS spends 2% of its total income on clinical negligence compared to half that level in New Zealand or Sweden.’
It argues that while advocates of the current system claim the way to reduce costs is for the NHS to reduce harm and improve patient safety, ‘snowballing costs are not related to a decline in patient safety, rather they are the result of a growth in claims and steep increases in the value of awards and claimant legal fees.
‘Indeed, adversarial litigation makes learning from mistakes harder not easier. Rather than reviewing cases in a way which accounts for context and system failure, a system focused on clinical negligence by definition seeks out individual failings.’
Moreover, the committee highlighted the unfairness of linking compensation to future earnings, which means children of cleaners receive less compensation than children of bankers, contradicting the ‘basic principle of equality that sits at the heart of our health system’.
Instead, the committee advocates that the NHS adopt a radically different system, which prioritises learning from mistakes rather than apportioning blame, where an independent administrative body investigates cases and determines eligibility for compensation. It suggests the new Special Health Authority, which will take over maternity investigations from HSSIB, would be ‘an efficient way’ for the government to implement this recommendation.
The committee recommends the law be changed so that access to compensation is based on agreement that correct procedures were not followed and the system failed to perform, rather than the higher threshold of clinical negligence by a hospital or clinician. While this ‘widens the pool of people entitled to compensation, the evidence from countries that have adopted such an approach is that overall costs will be lower not higher’.
The committee also states the process should be completed in six months so that lessons can be learned fast, and patients and family members should be given an explanation of what happened.
Responding to the report, however, Qamar Anwar, managing director of First4Lawyers, said: ‘It probably isn’t coincidence that this report is published in the same week that the fixed recoverable costs consultation closed; the government is clearly intent on reforming medical negligence.’
The Department of Health and Social Care (DHSC) consultation, Fixed recoverable costs in lower value clinical negligence claims, closed this week. It proposed a streamlined process for claims valued up to £25,000, with limits at each stage on the amount of legal costs that successful claimants can recover.
Anwar said: ‘As most claimant lawyers in the sector will testify, NHS Resolution’s inability to accept liability even in the face of overwhelming evidence is a key reason why so many cases drag on longer than they need to.
‘Its own report last year confirmed that NHS legal costs were rising while claimant costs were on the decline. The report says the new system would prioritise learning from mistakes, which should surely be the case already.’
Anwar also highlighted the independent role of lawyers, who ‘fight for their client’s needs, helping them to uncover the truth, highlight injustices and drive learnings so mistakes are not repeated.
‘They also do an enormous amount of due diligence to filter out spurious cases at the outset. To replace them with an administrative body which is part of the NHS is akin to letting the fox guard the chickens.’
