John Tingle, Associate Professor, Birmingham Law School.
Introduction
The high cost of clinical negligence claims against the NHS has been an issue for several years and has been well articulated in several past reports most notably in the NHS Litigation Reform Inquiry Report chaired by Jeremy Hunt in 2022 where the issue was discussed and reforms proposed. The report states:
“At the same time, the costs of the system have continued to grow at an eye-watering
rate. Ten years ago the NHS paid £900 million in damages; last year it was £2.17 billion
– equivalent to the annual running costs of the biggest hospital Trust in England or four
average sized hospitals. This sum is set to double over the next decade to £4.6 billion,
and around a quarter of such costs go not to families but to lawyers.”(p.3).
The Government have yet to formerly respond to this report and have pledged to investigate the issues of clinical negligence and cost.
Clinical Negligence Litigation is Expensive
In discussing the costs of clinical negligence litigation, it should not be forgotten that this is a complex, time-consuming, highly specialised area and is expensive. There are many complex issues to resolve, such as breach, causation. Expert medical reports are also needed and must be costed in. A small value clinical negligence claim can be just as complex to resolve particularly in the terms of causation as a higher value one.
Calls are made that clinical negligence claims are taking away much needed resources from front line health care. At the same time, we need to make sure that a patient injured by clinical negligence can access legal help and receive just compensation. To put themselves back in the position they were in before the negligence occurred. It must also be remembered that money is a poor compensator for the loss of a faculty or amenity or the death of a person. There are many issues to balance in the debate and no easy answers.
Jaw Dropping’ ,’Astounding ‘,’Astronomical’
It is not often you see the words, ‘Jaw Dropping’ ,’Astounding ‘,’Astronomical’ in official reports but the Commons Public Accounts Committee ( PAC) in their report used these words in relation to the £58.2 billion that the NHS has set aside to pay for the estimated future cost of claims in examining the Department of Health and Social Care (DHSC) 2023-24 annual report and accounts. PAC in their report states this is almost a third of health and social care total annual spend. It is also the second largest liability across government after the cost of nuclear decommissioning. See further the HM Treasury, Whole of Government Accounts year ended 31 March 2023.
Denis Campbell writing in The Guardian quotes Sir Geoffrey Clifton -Brown, the PAC chair:
“The fact that government has set aside tens of billions of pounds for clinical negligence payments, its second most costly liability after some of the world’s most complex nuclear decommissioning projects, should give our entire society pause,” said Sir Geoffrey Clifton-Brown, the PAC chair.
A wake-up call
The PAC report is a wake-up call for both the DHSC and the NHS. Progress has been too slow in instilling a proper patient safety culture in the NHS and there is too much uncertainty regarding DHSC policy regarding clinical negligence litigation and possible reforms. PAC states that far too many patients still suffer clinical negligence which causes them devasting harm and draws resources from the wider NHS.
It is unacceptable they say that the DHSC has yet to develop a plan to deal with the cost of clinical negligence claims and that so much taxpayers’ money is being spent on legal fees.
PAC make the following recommendation:
Within the next 6 months, the Department should set out a plan with clear actions to:
- Reduce tragic incidences of patient harm to as low a level as possible; and
- Manage the costs of clinical negligence more effectively, including introducing a mechanism to reduce legal fees.
- Improve patient safety across the NHS and in particular maternity services. (p7).
Hopefully we will have soon the DHSC ideas, policy consultation on next steps with NHS clinical negligence litigation.
This blog is based on a column recently submitted to the British Journal of Nursing (BJN)
https://www.britishjournalofnursing.com/authors/john-tingle/