The £15.7billion was said to include "an estimate
of the cost of mistakes that have not yet been claimed
for". The annual provision for clinical negligence claims
in the Whole of Government Accounts Report 2009/10 was £2.1bn
but the actual amount paid by the NHS in 2009/10 was
It is interesting to consider why claims have not been made in
situations where the government anticipates them. Sometimes this
will be because claims on behalf of children do not need to be
brought until the child reaches adulthood so if a child has been
injured but no claim has yet been made it does not mean that a
claim will not be made in future.
Other explanations are, however, more worrying. Despite what you
may read in the press about 'compensation culture' people
are still reticent in bringing claims, particularly against the
NHS. Many of those who make a claim only do it reluctantly. Perhaps
the constant publicity about the compensation culture is putting
people off: they don't want to be seen to be part of such a
demonised section of society. That is sad if it means that there
are families undergoing significant hardship as a result of injuries caused by medical negligence but are
put off from claiming.
An additional explanation, however, is that many of the people
who have been injured as a result of poor medical treatment may not
know about it. They know that they were ill and that they required
some sort of medical treatment but they may well not know that an
error was made or that their injury was neither the result of the
original illness, nor unavoidable. That is because nobody tells
them. Those who suffer as a result and are unaware of the
possibility of claiming compensation are disproportionately
likely to be less well informed and more vulnerable members of
Lobby groups such as Action against Medical Accidents (AvMA)
have called for a statutory duty of candour to remedy this
situation arguing "The current situation means health
organisations can effectively cover an incident up from a patient
or family member". A duty of candour would be a legal
obligation upon the NHS to inform patients when mistakes have been
However, following a consultation paper, peers last week
rejected inserting a statutory duty of candour into the Health and
Social Care Bill by 234 votes to 194. After the decision Chief
Executive of AvMA, Peter Walsh, stated "this is a bad day
for anyone who values patient safety and patients'
rights." Health Minister Earl Howe explained that the
government "doesn't feel more regulation is the right
way to go" but continued to explain that a contractual
duty of candour may still be on the cards despite concerns from
lobby groups that a contractual duty would be woefully
With the NHS budgeting for increasing numbers of medical
negligence claims and a statutory duty of openness in the NHS being
rejected, Baroness Masham expressed the concerns of many in asking:
"Patients and their supporters always have to fight for
The obvious concern for the NHS is that a requirement to admit
mistakes to patients will potentially make thousands of patients
aware of the possibility of making a claim for compensation. If
further claims are brought as a result it would increase costs to
the NHS. Nevertheless, even the Department of Health has confirmed
"if patients do not receive the treatment they should, and
mistakes are made, it is right that they should be entitled to
compensation". That promise is toothless without an
obligation on hospitals to inform patients when a mistake has been
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