News / NAO calls for robust action on clinical negligence

Its report, Managing the costs of clinical negligence in trusts, said the government must take a more robust and integrated approach to rein in the rising costs.

Trusts spending a higher proportion of their income on clinical negligence were more likely to be in deficit. For example, in 2015/16 all 14 trusts that spent 4% or more of their income on clinical negligence were in deficit.

The NAO said spending on the Clinical Negligence Scheme for Trusts quadrupled in the last 10 years – from £0.4bn in 2006/07 to £1.6bn in 2016/17. In the same period the number of successful claims where damages were awarded more than doubled – from 2,800 to 7,300.

The rising costs were due to a number of factors, including an increasing number of claims (accounting for 45% of the increased costs), damages awarded (33%) and claimant legal costs (21%).

Claimant legal costs saw the most rapid rise – increasing from £77m to £487m over the 10-year period. The report said this was mainly due to a rise in the number of low and medium value claims (less than £250,000). In 2016/17, the claimant’s legal costs exceeded the damages awarded in 61% of settled claims.

The NAO recognised that the Department of Health and NHS Resolution (formerly the NHS Litigation Authority) had taken steps to limit spending and had proposed new cost-containment schemes. While these measures would save £90m a year by 2020/21, the cost of clinical negligence is forecast to double to £3.2bn by that year. The CNST has a provision for future legal costs of £60bn.

It recommended that the bodies work with the Ministry of Justice and other departments to develop a coherent cross-government strategy to tackle clinical negligence costs. But it warned some factors fell within the remit of a number of departments or were outside government control, such as developments in the legal market or the increasing value of damages awarded in high-value claims.

NAO head Amyas Morse said: ‘The cost of clinical negligence in trusts is significant and rising fast, placing increasing financial pressure on an already stretched system. NHS Resolution and the Department are proposing measures to tackle this, but the expected savings are small compared with the predicted rise in overall costs. 

‘At £60bn, up from £51bn last year, the provision for clinical negligence in trusts is one of the biggest liabilities in the government accounts, and one of the fastest growing. Fundamentally changing the biggest drivers of increasing cost will require significant activity in policy and legislation, areas beyond my scope.’

NHS Confederation chief executive Niall Dickson backed the report’s findings. ‘We cannot go on like this with the NHS spending more and more on litigation. We share the NAO’s concern that the government lacks a coherent strategy to support measures to tackle these rising costs.

‘We do accept that there are too many mistakes and that more needs to be done to learn lessons when things go wrong. The Getting it right first time programme will certainly help with that. But this rising tide of litigation is draining the NHS of resources and must be urgently addressed.’