Foil's Stephen Hines on why it's time to refocus the agenda on clinical negligence reform

When the NHS Confederation wrote to Justice Secretary David Gauke in January, the letter’s contents stirred some in the legal industry to comment publicly and negatively about the conduct of clinical negligence claims by defendants and their lawyers, and voice concerns about the government’s focus on reducing claim costs rather than the incidence of claims.

The NHS suffers claims inflation from many angles - the National Audit Office’s prediction that the cost of clinical negligence claims will be £3.2bn by 2020 to 2021 is alarming when, in 2010 to 2011, it was less than £900m.

The reduction of the discount rate to minus 0.75% has played a major part in the continuation of the increased cost of claims, as do claimant legal costs, which continue to increase relentlessly. Indeed, costs are up to almost £500m in 2016 to 2017, an increase of 19% when compared with the previous year, notwithstanding significant legal changes in 2013 designed to assuage them.

In 2016 to 2017, NHS Resolution settled 6533 claims with no payment of damages; yet such claims carry a significant, hidden additional cost to the NHS – doctors and nurses involved in those claims will have spent time away from their frontline jobs, which has an obvious knock-on effect for the provision of care to other patients.

Of course, the outcome of negligence is often devastating - to then be involved in protracted litigation is the last thing needed. Streamlining the claims process and reducing this burden on claimants and NHS staff and resources must be a priority. To that end, following an earlier pilot, NHS Resolution introduced a mediation scheme to settle claims outside the traditional court process, saving costs for all concerned.

Much other work is underway to improve learning from incidents - since 1 April 2017, providers of maternity care have been required to report all incidents of potentially severe brain injury at birth to NHS Resolution, which has already resulted in admissions and financial support being offered to families. Also, in September 2017, NHS Resolution published its Five years of cerebral palsy claims report, which made various recommendations to make maternity care safer.

NHS Resolution also now has a dedicated Safety and Learning Team in place supporting Trusts to learn from adverse incidents. It is, therefore, misleading, unfair and unhelpful for the claimant lobby to make lesson-learning and defendant-conduct the focus of their contribution to the debate. Progress in making reform is likely to be accelerated if claimant and defendant teams collaborate to improve patient safety.

It seems clear that clinical negligence claims need root and branch reform. The call for reform is not new and it should not be seen as controversial. With the work on implementing changes to lower value personal injury claims now well under way, it is right to refocus the reform agenda.

In her Times column, Many NHS victims should settle for apology, broadcaster Clare Foges argued any reform needs to go deeper than the numbers, not least because of the additional time and investigatory costs incurred as a result of medical practitioners’ anxieties surrounding clinical negligence claims. In any event, as mentioned in a speech to the Personal Injury Bar Association in November, Lord Sumption’s predicted statutory measure of damages is one that needs serious consideration.