Call for fundamental overhaul of clinical negligence process

28 April 2022 Seamus Ward

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jeremyhunt LIn a report, the Commons Health and Social Care Committee said the current adversarial system was the only way harmed patients could get access to financial compensation. These contests were slow, stressful, and often bitter, as the system is geared to seeking out individual failings. Those most in need often wait the longest, while outcomes can appear arbitrary – based not on need but on whether clinical negligence can be proved.

Costs have snowballed as claims have grown, the magnitude of awards have increased, and legal costs have risen. In the last 10 years the overall cost of clinical negligence in England has soared from £900m to £2.17bn, with around a quarter of that paid out going to lawyers.

The NHS is also incurring liabilities that are around four times the amount currently being paid out – £8.3bn in 2021/22 alone, the report said.

Reform was needed urgently to move away from the adversarial system to an ‘administrative’ process, like those used in New Zealand or Sweden. 

Committee chair Jeremy Hunt said: ‘The system of compensating patients for negligence in the NHS is long overdue for reform. We’re urging the government to adopt our recommendations to reduce both the number of tragedies and the soaring costs to the NHS. 

‘It is unsustainable for the NHS in England to pay out more than £2bn in negligence payments every year – a sum equal to the cost of running four hospitals – a figure that will double in 10 years if left unchecked,’ he added.

‘We need a better system that learns from mistakes, following the lead of countries like New Zealand and Sweden. We must move away from a culture of blame to one that puts the prevention of future harms at its core.’

Some processes should be changed to accelerate the new system – access to compensation should be based on agreement that the correct procedures were not followed, and the system failed to perform rather than the higher threshold of proof of clinical negligence, for example. Though this would widen the pool of patients eligible for compensation, evidence from other countries was that overall costs would be lower.

All costs should be based on the funding needed for top-up care provided by NHS and social care, not on private provision of all care, as it is currently. Also, in cases involving under-18s, the current process for calculating loss of future earnings means children of less well-off families receive less than those of wealthier parents. This should be scrapped for such cases, and instead regular reviews of the patients’ needs should be made with payments adjusted accordingly.

Patients would still be able to pursue litigation, but it should be mandatory to first use alternative dispute resolution, which should run in parallel with a new, cross-NHS process to learn from mistakes. Both processes should last no more than six months, and it would then be up to NHS Resolution and the trust in question to decide whether they accept liability for a mistake or clinical negligence, and begin payments.

Pilot suggestion

The report acknowledges the proposed system is complex and suggests it is piloted first in cases where birth injuries leave children seriously disabled. Once established, its scope could be widened to cover all claims.

The Health Service Safety Investigations Body (HSSIB) is a step forward as it offered no-blame, safe space investigations, the MPs added. A new special health authority is due to take over maternity cases from the HSSIB, and it made sense to extend the new body’s remit to include acting as an independent administrative organisation that investigates cases and determines eligibility for compensation.

‘This would be the most effective long-term way to reduce both the number of tragedies and the cost to the NHS,’ the report said.

NHS Providers said the report had turned the spotlight on the need for litigation reform, to address the safety issues raised, and the growing cost of claims, which are paid directly from the same pot used for the provision of patient care.

'While the cost of claims has increased substantially over recent years, this is not a direct result of a poorer standard of care by NHS trusts but can instead be largely attributed to a rise in the value of compensation and costs of covering claimants’ legal fees,' insisted Miriam Deakin, its policy and strategy director.

'Improving quality and patient safety must be at the forefront of reform. However, this report also champions the need to look at the current model of awarding compensation to patients, how NHS trusts and staff respond to and learn from patient harm, and how compensation is calculated. '