By John Tingle, Associate Professor, Birmingham Law School, University of Birmingham
Generally speaking, most people would regard the NHS as being a national treasure. We all witnessed during the COVID-19 pandemic people coming out into the street and clapping for the NHS. Times however change and the NHS faces today more intense scrutiny as a new government has come into power. In recent times the public’s reverence towards the NHS has also begun to shift, times have changed. This is discussed by Kristian Niemietz in a recently published Institute of Economic Affairs Discussion paper on the NHS.
Major NHS Problems
There are major well-known problems with the NHS, some find it difficult to get a GP appointment, an NHS dentist, long waiting lists for elective treatment, A &E delays and so on. Arguably we have a model of NHS care that is stretched to the limit. We have an increasingly elderly population presenting with often multiple complex conditions. The NHS can also do more through advances in treatment and care. We all expect a lot more from it, and it is generally free to access for all.
The Independent Investigation of the National Health Service in England by Lord Dazi has recently been published and was commissioned by the new Secretary of State for Health and Social Care, Wes Streeting. The report is a hard hitting one pointing out major defects with the NHS in England.Darzi states that the NHS is in serious trouble but there is a caveat of sorts:
“Despite the challenges, the NHS’s vital signs remain strong. (p.11)”
The report is a deep dive into the issues that continue to plague the NHS and what needs to happen to help improve matters. A roadmap for NHS reform is given.
From a patient safety and health law perspective the report makes some interesting and worrying observations. Some of the points made in it require much further discussion and analysis. The issues are more nuanced and complicated than are stated in the report.
Clinical negligence
“The NHS is paying out record sums in compensation payments for care failures, which now amount to nearly £3 billion or 1.7 per cent of the entire NHS budget. (p.9)”
Reference is made by Darzi to the House of Commons Health and Social Care Committee Inquiry into NHS Litigation Reform. This report was an in-depth analysis of our arrangements for compensating for clinical negligence and whether system reform was needed. The report took the view that reform was needed and a government response to it is still awaited. Darzi discusses the issue of the NHS being an outlier in the amount of clinical negligence payments as compared to some other countries which was also discussed in the NHS Litigation Reform Inquiry. Darzi discusses the high costs within the context of NHS budgets for GP services and NHS pathology tests stating further that:
“Aside from pensions and nuclear decommissioning, NHS clinical negligence claims are the largest liability on the Government’s balance sheet (p.61)”
Worrying Take Aways
My concern with the Darzi discussion of clinical negligence is that it is too brief, lacking essential detail and not covering the injured claimant’s perspective enough. Patients have a right to receive just compensation for negligent harm. They have been negligently injured by the system, individuals that were meant to care for them.
By way of defence to the report, I acknowledge that it covers a vast subject area and that there is not the room to go in too much detail on issues.
However that said, the takeaway to me from reading discussion of clinical negligence is that the NHS is spending too much on clinical negligence compared to other countries and this is taking essential money away from front line health care resources. The argument appears to be centered around economics, not the injured patient rights and is a little too simplistic.
Two sides to every story
There are two sides to every story. Clinical negligence litigation is an expensive, complex area. Even small clinical negligence claims can involve complex causation issues requiring expensive medical reports and so on.
NHS Regulatory, Governance Overall
The NHS health regulation and governance structure needs to be urgently simplified as it is confusing both to patients and clinicians. It is fragmentary in nature with too many NHS organisations having patient safety remits which causes confusion both to NHS staff and patients. This has been said many times before in reports by NHS patient safety stakeholders including the CQC (Care Quality Commission) which itself is currently being investigated for poor performance by the Dash Review. There is a discussion of CQC failings in Darzi.
The conclusion drawn in Darzi is that there are too many people in NHS regulatory type functions and the problems this causes are discussed. The report makes the point that taken together there are some 80 people in organisations at the top of the system for each NHS provider trust. The concern expressed is that the result is an ever-lengthening list being made on providers of regulatory jobs to do. In essence we are suffering from health regulatory, governance overkill and that urgent changes need to take place.
Conclusion
The NHS is going through a rocky time with government and public confidence being low. The Darzi report provides a way forward for the NHS to improve matters clearly identifying the challenges that need to be faced and possible remedial solutions. Clinical negligence litigation and NHS regulatory, governance are two issues discussed along with many others.
The Darzi report covers a vast topic area, the NHS and as such there are going to be limitations on the amount of detail that can be given on any particular issue. This raises the danger of sound bites; takeaways being given in the report which don’t give the full and just picture of issues. Issues that are much more complex and nuanced than are stated. We need to be careful of these so that wrong or ill-informed impressions are not taken away by readers.
I would argue this is the case with the report’s discussion of clinical negligence. Readers of the report should not automatically assume that we need to fundamentally change out tort based clinical negligence compensation system because of high cost. It must be remembered that there are two sides to every story.
This blog is based on one of my fortnightly opinion columns for the British Journal of Nursing.