Happy Birthday to our National Health Service (NHS)

By John Tingle

Our National Health Service turns 70 in July and has made remarkable achievements since its inception on July 5, 1948. The NHS is quite rightly an institution to be proud of, and it is envied across the world. Admittedly, the NHS does have its problems, but these should not detract from an overall appreciation of its core value to our society.

In 70 years a lot has happened. Nursing and medicine have evolved, new treatments, and medicines have been developed to cope with new diseases, and our concept of health has also changed.

Health is no longer just the absence of disease; it’s a far more holistic concept today.

Since its inception, the NHS has had to deal with clinical negligence claims. Today there is mounting concern that the high level and costs of clinical negligence claims threaten the very existence and fabric of the NHS.

Exactly what must be done to reduce levels and costs remains a topic of intense speculation and conjecture.

Current initiatives

There are currently lots of discussions going on about how to manage the rising costs of clinical negligence claims. The National Audit Office (NAO) has considered the matter in some detail and has come to conclusions which throw a sharp focus on government and NHS regulatory bodies’ current efforts to deal with the issue. The NAO feel that government actions, such as putting caps on some claimant solicitor fees, are not going to be enough. The problem is bigger than one government department’s remit, and more joined up thinking and policy development needs to take place between regulatory stakeholders.

The NAO report states that between 2006-07 and 2016-17, the number of clinical negligence claims registered with NHS Resolution each year, under its Clinical Negligence Scheme for Trusts, doubled from 5,300 to 10,600. Further the cost of this scheme has increased significantly, with spending rising to £1.6 billion in 2016-17. The provision for existing or potential clinical negligence claims through this scheme was £60 billion in 2016-17.

The Government have recently made a formal and positive response.

HM Treasury to the Committee of Public Accounts report:

The Government is developing a cross-government strategy to address the rising costs of clinical negligence, and will report back to the Committee by September 2018. As part of this, the Government has commenced a review of the adequacy of current legislation and will report back on this element to the Committee by the April 2018. As part of this work, the Government is looking at what further measures might reduce the legal costs of claims, including the potential benefits of alternative forms of redress such as mediation.” (p.5).

The NHS has come a very long way since its formation. We are celebrating its birthday and at the same recognising the challenges it faces. Litigation against it has been a consistent theme in its history. There are benefits to the litigation process. Rights are articulated, working relationship frameworks are developed (such as those relating to consent to treatment), and disputes are hopefully justly resolved.

We can all learn from the lessons of past negligence cases through the law reports and amend our clinical practices. But as we approach the NHS birthday, an immense challenge lies ahead for the Government. It needs to justly address through policy developments the increasing costs of clinical negligence against the NHS.

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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