NHS Litigation Reform: No Blame, No Claim

The Health and Social Care Committee has now released its much-anticipated report on NHS Litigation Reform which is calling for a radical change in the current clinical negligence system. If implemented, it would remove the need for a patient to prove negligence where there has been an avoidable adverse outcome from treatment, to receive compensation.

In September 2021, the Committee launched an inquiry to examine the case for the reform of NHS Litigation. The spiralling costs of NHS litigation has been a concern for many years and has been considered by previous Governments, with very little change ever being implemented.

The focus of the inquiry was to consider the current process for obtaining compensation following medical treatment related injuries and how it could be improved to reduce the costs involved. Crucially, the Committee wanted to focus on promoting patient safety and learning and whether this was achieved by the current system.

The Committee considered evidence from colleagues involved in the clinical negligence process including law firms, barristers, APIL, NHS Resolution and other Medical Defence Organisations. The Committee also heard from people who have brought clinical negligence claims in tragic circumstances, as well as the clinicians who are treating patients within an NHS setting.

Conclusions

The report, published on 28 April 2022, concludes that clinical negligence claims are adversarial, costly and do not facilitate learning from mistakes within the NHS.  The cost to the NHS is not just financial. Claims can take a significant toll on the injured parties and the clinicians involved, with the Committee hearing that many doctors and nurses cite the fear of litigation, or involvement in litigation, as reasons to leave the profession.

In order to address these failings, the Committee recommends a fundamental change in the way compensation is awarded so that we move away from a system concerned with apportioning blame, to prioritising patient safety and learning from mistakes.

To achieve this, the Committee recommends a change in the law so that compensation is awarded where there is agreement that correct procedures were not followed and the system failed to perform, rather than negligence.

The Committee envisages two separate investigations into a potential claim to be undertaken by independent bodies.  It says an independent Alternative Dispute Resolution body should investigate the circumstances in which a patient was harmed and decide if it was a result of treatment and whether it was avoidable. If the relevant NHS care provider agrees, the independent body would then determine the level of compensation to be awarded.

Parallel to this, there would be another independently led investigation involving the relevant NHS care provider, the clinicians and the patient which would provide key learning outcomes for Trust.

The Committee recommends this should be a standardised process throughout the NHS and should take no more than six months. Any learning should also be shared NHS-wide. There would be a requirement on hospitals to train adequate numbers of staff in “just culture” practices to reduce confrontation and relationship breakdown between clinicians and the injured patient.

The Committee says the amount of compensation a patient would be awarded would be “as generous” as that which they would receive via the Courts, not least because they would not have to use any of the damages received to pay legal costs.  

However, the way in which compensation is assessed would be fundamentally different:

• Future care costs would be assessed to address any additional costs to top up care available on the NHS and social care system, rather than assuming all care would be provided privately (requiring repeal of section 2(4) Law Reform (Personal Injuries) Act 1948 which currently entitles Claimants to claim for costs of future treatment in the private sector, notwithstanding NHS services would be available).
• The current method of assessing future loss of earnings for children based on their parent’s earnings would be scrapped in favour of a more standardised approach related to national average earnings.
• There would be a periodical review built into the compensation award so that they can be responsive to the changing needs of the patient. This would be particularly advantageous in birth injury claims, as an initial payment could be made within the first few weeks of a claim and then adapted as the child developed.

It would be mandatory for a patient to follow this process in the first instance, but the option of a traditional clinical negligence claim would be open to them if they wanted to pursue it. However, the report recommends that Qualified One-Way Costs Shifting be disapplied to clinical negligence claims in those circumstances so that Defendants would be able to recover their costs if a Claimant was unsuccessful.

Comment

The Committee acknowledges that their recommendations would create a seismic shift in our current approach to medical treatment-related injuries. However, other countries such as Japan, New Zealand and Sweden already implement these systems with much success and the Committee feels we should be following their lead.

It is unclear whether the Government will implement the proposed changes. It has previously failed to implement the “Rapid Resolution and Redress” system, which was intended to remove the need to find blame in birth claims. However, with claims costs set to total around £2 billion and future liabilities to account for £8.3 billion of the NHS spend in this year alone, the Committee suggests some urgency is needed to bring these costs back under control.  

In the meantime, the report serves as a timely reminder of the need to approach litigation in a proportionate way and to utilise forms of alternative dispute resolution to resolve claims at an early stage where appropriate.  The Committee praised NHS Resolution’s mediation protocol and noted its success in avoiding Court proceedings in many cases. Mediation is a very effective tool in resolving claims, particularly in sensitive cases, but a simple phone call can also suffice in some circumstances. What is most important is to ensure all cases are properly assessed for settlement from the outset and for that to be kept under review, to keep costs in focus and under control.

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