The Health and Social Care Committee report on clinical negligence reform proposals
On the 28th April the Health and Social Care Committee published its report into NHS litigation reform. The cross-party Committee suggests that we need a radically different system for compensating injured patients, which moves away from apportioning blame and prioritises learning from mistakes. The Committee recommends that an independent administrative body should investigate cases and determine who should receive compensation.
We have been here before. We have had suggestions of a 'no fault' compensation system in the past, similar to the system introduced in New Zealand. What is driving the new proposal?
Cost is a major factor. Last year the cost to the NHS in compensating patients was £2.17 billion and this sum is set to double over the next decade. About a quarter of this sum is paid in legal costs. While only about one in ten of all claims relate to birth injuries, those cases take up nearly 60% of the total paid in compensation.
Is the overall cost a sign of declining patient safety? Not according to the Government's evidence to the Committee, which was that the quality and safety of patient care had either improved or remained stable. Instead, the Committee found that the spiralling litigation bill is the result of a growth in claims and steep increases in the size of awards and Claimants' legal fees.
Our system is built on the principle of putting Claimants back in the position they would have been but for the negligence. Where that involves a lifetime of care, loss of earnings and suitable accommodation, claims will inevitably be high in value. In its evidence to the Committee, the Bar Council pointed to the increases in the cost of living and house prices, the negative discount rate and the calculation of accommodation claims following Swift v Carpenter as examples of factors having a bearing on the level of damages recoverable.
As for costs, we have all dealt with cases which may be modest in value but which involve difficult breach and causation arguments and need multiple experts. While the costs may be disproportionate to the eventual damages, they may not be disproportionate to the importance of the events to both Claimants and clinicians, particularly in cases involving fatal injuries.
Another factor considered important by the Committee is encouraging system-wide analysis of where care has gone wrong, rather than focusing on individual error. It is proposed that there is a parallel system: a swift independent investigation which can suggest changes to the system so that mistakes are not repeated, together with a determination on liability for compensation by an independent Alternative Dispute Resolution body. Compensation would be based on the additional costs necessary to top up care already available through the NHS and social care system and would be made with periodical reviews built in, rather than on a 'once and for all' basis. The Committee envisages awards being no less generous than those awarded by the court, but Claimants would still have access to litigation, having used the administrative system as a mandatory first port of call.
It is not clear where the threshold would be set for eligibility under the scheme. If medical causation forms part of where the bar is set, many of the problems that are attributed to the current litigation process (lengthy investigation and expensive experts and lawyers) may still be present.
The Committee recommends piloting this system in birth injury cases. The Government has two months in which to respond to the Committee's report. Watch this space.
Since the preparation of this article: AVMA have responded to the paper.
Action Against Medical Accidents argues the proposals would: badly affect access to justice for many injured patients or their families; harm patient safety; cause unintended other costs which could outweigh any "savings"; and are unsuitable for fatal cases and those where there are capacity issues. Further it argues the "early neutral evaluation" way of determining cases is untried and untested in clinical negligence.
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