Government urged to cap clinical negligence legal costs

Publishing responses to a consultation on fixed legal costs, health and social care secretary Jeremy Hunt has decided to set up a working group to come up with improvements in the clinical negligence claims process, including a schedule of costs.

Last year a National Audit Office report said in the 10 years to 2016/17 spending on the clinical negligence scheme for trusts had quadrupled to £1.6bn. While the rising number of claims and higher damages contributed to this (45% and 33% respectively), claimant legal costs had increased by 21%. The fastest percentage rise was in claimant legal costs – from £77m in 2006/07 to £487m in 2016/17.

With an increase in low- and medium-value claims in 2016/17 claimant legal costs outstripped damages awarded in 61% of settled cases.

The Department of Health and Social Care said NHS Resolution had worked with claimant representatives to develop a schedule of fixed costs in 2011/12. However, there were objections, including the focus on linking costs to the value of a clinical negligence claim and the level of costs allowed for at various stages of the process. The new group’s proposals would apply to care given in England and Wales (both NHS and private practice) and it is expected that recommendations will be published in the autumn.

The consultation showed a clear split between lawyers who represented claimants (only 15% agreed costs should be fixed) and those who represented defendants (86% backed fixed recoverable costs).

NHS Confederation chief executive Niall Dickson (pictured) said the announcement of the working group was a step in the right direction. ‘It must surely be fair to cap the amount lawyers can charge for their costs, and we welcome the decision to set up a group to work on this - we trust that the government will act quickly on its recommendations.’ 

He also welcomed the government’s determination to tackle clinical negligence claims more widely. He added: ‘We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay. Money that is used for this purpose cannot be spent on frontline care.’

Alongside the consultation responses, the Department published an analysis of the fixed cost options. This recommended using a matrix derived from average base costs to calculate the fixed recoverable costs in clinical negligence claims. This included steps to reduce costs where there was an early admission of liability.