The House of Commons Health and Social Care Select Committee is currently in the process of gathering evidence for its inquiry into NHS litigation reform. The purpose of the inquiry, chaired by former Health Secretary Jeremy Hunt MP, is stated to be an examination of "the case for the reform of NHS litigation against a background of a significant increase in costs, and concerns that the clinical negligence process fails to do enough to encourage lessons being learnt which promote future patient safety."
On 11 January 2022, the inquiry heard oral evidence in the House of Commons from representatives including those from NHS Resolution (an arm’s length body of the Department of Health and Social Care which provides expertise to the NHS in clinical negligence claims), the Association of Personal Injury Lawyers (APIL – a not-for-profit campaign organisation representing injured people) and Action Against Medical Accidents (AvMA – a patient safety and justice charity).
January 2022 also saw the publication ‘The Value of Compensation,’ a report commissioned by APIL with research carried out by Opinium, an independent strategic insight agency. Opinium conducted a series of interviews with people who have received compensation due to NHS negligence. The report was presented to the inquiry and, introducing it, APIL Officer Guy Forster highlights that “There is a fixation on the financial cost of clinical negligence, rather than on the human cost and the reasons why injured patients have to make a claim for compensation at all…None of them relish having to make a claim for compensation. I cannot stress enough that the money is never, ever a ‘windfall’ for an injured patient.”
Indeed, legal guidelines for the amount of compensation for the actual injury itself are surprisingly low and the sum usually represents a minor element of a settlement in comparison to the associated actual financial losses and expenses a claimant has or will incur as a consequence of the injury. As the report makes clear; ‘Compensation does not provide the means for people to elevate their standard of living. It simply facilitates a ‘return to normal’, or an adaption to a ‘new normal’, post the negligent event.’
The potentially very wide-ranging impact of clinical negligence must not be overlooked in the context of discussions about the levels of compensation and costs. In addition to poor physical health, the report lists job loss, financial troubles, relationship breakdowns and a loss of self-identity and self-worth as common consequences of clinical negligence, and highlights that "Often receipt of compensation is key for preventing a spiral of decline."
This sentiment is underlined by the following finding in the report: "Patients place huge value on compensation because it helps them get back on track and recover from the negative fall-out that was caused by the negligence."
At a time when the Department of Health and Social Care has just opened a consultation on its proposal to introduce fixed legal costs in clinical negligence claims of ‘lower value’ (i.e. those up to £25,000) – which would make many of these cases simply financially unviable for solicitors to take on – ‘The Value of Compensation’ report comes as a stark reminder of the human element in clinical negligence claims. It is vital to keep at the forefront of the mind that ‘lower value’ does not mean ‘lower importance’ to the injured individual. For many, ‘a spiral of decline’ can be set in motion by even just one month of being too unwell to work. Access to justice must be maintained for all.
As the report goes on to explain; "Compensation isn’t about shaming the NHS, but about recognition of wrongdoing. Many patients mention their admiration and respect for the NHS and the work that they do, and some mention not feeling particularly happy at having to take action against them. However, it is considered important that negligence and wrongdoing are recognised and equally that these experiences are not repeated for others."
Perhaps the quickest and most effective way for the NHS to reduce the cost of clinical negligence claims would be to focus on improving patient safety to reduce the instances of negligence in the first place, and to facilitate early resolution of claims when negligence does occur. The all too familiar approach by the NHS of ‘deny and delay’ even in the face of strong evidence of clinical negligence – which can often feel like an apparent hope that claimants will lose the strength to continue their fight for justice – only serves to increase costs and to generate ill feeling. Not only would early resolution reduce legal costs but it would also help claimants get back on track with their lives sooner, in turn reducing the expenses and losses for which the NHS must compensate them for.