The end of clinical negligence litigation as we know it?

Ellie Miles, Associate in the Russell-Cooke Solicitors, personal injury and medical negligence team.
Ellie Miles
4 min Read

On 28 April 2022 the UK Parliament’s Health and Social Care Committee published a report setting out their concerns with the state of the current litigation landscape relating to NHS care.

In the report, the Committee set out their plans for a complete overhaul of the current system.

As a newly qualified solicitor conducting clinical negligence work for claimants, the report makes for pretty concerning reading. Of course, the prospect of change often invokes a sense of unease as well as excitement, even when that change is for the better.

The report is 69 pages, and will take time for practitioners to fully digest, but I would like to briefly set out why there are some very real reasons to be concerned by the proposed changes.

An ‘administrative’ system

The report sets out the Committee’s view that the current system is too adversarial.

It concludes that the system “is…grossly adversarial, and promotes individual blame instead of collective learning”.

The implication seems to be that claimants (and their lawyers) like to find someone to point the finger of blame at, to no real end.

The Committee has proposed that the system of clinical negligence litigation is replaced by “an independent administrative body” which would investigate cases inquisitorially and provide compensation when it is found that a person’s harm could have been avoided.

Working at Russell-Cooke, and having the benefit of working within a broad practice of both personal injury and clinical negligence work, I cannot help but think how bizarre everyone would find it if car insurance companies were required to pay out whenever a car accident happened that an administrative panel had determined could have been avoided, without acknowledging who caused the accident and how it happened.

The purpose of establishing negligence is not to needlessly apportion blame. Whilst the current system clearly involves seeking recognition of fault from individuals when they have fallen below the standard expected of them, the purpose of this is to find out what went wrong, and why. It begs the question, how can anyone learn from an adverse event without identifying failures and shortfall in competency or systems?

Unfortunately, it is true that lessons are not always learned in the current system. The recent publication of the Ockenden report, which highlighted a series of failings in maternity care in Shrewsbury and Telford Hospital NHS Trust over a period of 20 years, only shows this too well. Shockingly, the report identified a culture of fear in that NHS Trust which discouraged people from escalating concerns.

It is important to remember that the only reason that this culture of fear was identified was through the brave litigation of harmed and bereaved families, and the fearless campaigning that they led to identify these connected, structural issues.

It seems clear to me that the litigation process did not cause the culture of fear, but instead helped to bring it to light.

Saving costs?

The report pointed to the significant, rising cost of clinical negligence claims as one of the key reasons why an overhaul of the system is needed.

However, according to figures by NHS Resolution and published by the Association of Personal Injury Lawyers (APIL), between 2018/19 and 2020/21, the cost of clinical negligence claims actually fell by 8%.

Additionally, claimant legal costs have fallen by 13% since 2016/17.

Claimant law firms and defendant bodies alike are fearful that the introduction of a completely new system, with a new set of standards that are as yet undetermined, will only have the effect of escalating costs for the tax payer.

NHS treatment

In the current system, claimants are allowed to seek future care in the private sector for injuries they have suffered as a result of clinical negligence.

The report recommends that compensation is based on the additional costs necessary to top up care available through the NHS and social care system. However, many of those services are not universally available and where they are they are often woefully inadequate.  This would therefore create a further drain on services for other patients who needed them.

Given the ever-increasing financial burden on the NHS, I fear that this change would not be workable unless it was coupled with a serious increase in funding for the NHS, and particularly in areas with ever-exhausting patient wait times (such as for mental health provision).

So, should it be business as usual?

Put simply, no. Improvements are needed to the current system to enable and encourage systemic learning where there have been systemic failings in the NHS.

There are already processes, such as the Serious Incident framework that encourage reflection and growth when there has been serious harm, with an emphasis on preventing the recurrence of harm. This system is currently being developed further.  

My concern is that it should not take a complete overhaul of the current system to achieve greater accountability and internal learning in the NHS, and that such a large change will unfortunately result in increased costs, confusion for patients, and a lack of accountability and improvement when things go wrong.

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