Houses of Parliament, London, England.

Resetting the Clinical Negligence Compensation System in England

By John Tingle

Recently it was announced that the British government will review our tort-based clinical negligence system and publish a consultation paper on the topic this year.

Our clinical negligence system is a major driver of cost in the National Health Service (NHS), and is an area of acute concern.

In 2017, the National Audit Office (NAO) published a report on the rising costs of clinical negligence claims and the effect on trusts (hospitals and other care organizations) in the NHS.

“The cost of clinical negligence claims is rising at a faster rate year-on-year, than NHS funding,” the report states. “Between 2010-11 and 2015-16, the average percentage of a trust’s income spent on contributions to pay for the Clinical Negligence Scheme for Trusts increased from 1.3% to 1.8%. Our analysis indicates that this percentage is likely to rise to about 4% by 2020-21. The increasing costs of clinical negligence are adding to the significant financial pressures already faced by many trusts.”

In The Law Society Gazette, John Hyde reports on the government review, stating that ministers are currently “working on a total overhaul of the ‘outdated’ system of clinical negligence compensation within the NHS.”

“Health minister Nadine Dorries told the health and social care committee that a review of the system was going ‘at pace’ and could involve all claims against the NHS,” Hyde writes.

Melanie Rowles, of the Medical Protection Society, has stated that in the past ten years, the cost of annual clinical negligence claims for the NHS has risen by over 200%. Over £2.4 billion in claims was paid in 2018/19.

She argues that “bold reforms” are needed to make matters of clinical negligence “more predictable, fair, and transparent.”

These concerns are nothing new. In 2001, “Learning from Bristol: the report of the public inquiry into children’s heart surgery at the Bristol Royal Infirmary 1984 -1995” was published. The report outlines how the tort-based clinical negligence system is out of alignment with other policy initiatives on quality and safety, and offers a rich, critical, and reflective discussion of the need for change.

In 2003, the former Chief Medical Officer Sir Liam Donaldson’s seminal report, “Making amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS,” was published. It is as relevant today as it was then in expressing the challenges and issues facing our tort-based compensation system and possible alternatives, such as a no-fault system.

The review and forthcoming consultation paper on the clinical negligence system will return to the forefront several key issues that require open and informed discussion, including the system’s rising costs. The notion that patients have an inalienable right to sue for negligent harm will also need discussion.

Nadine Dorries’ evidence and discussion from February 2, 2021 can be found on Dorries spoke about the outdated practices and system for determining how clinical negligence compensation is calculated.

This committee hearing is well worth listening to, as several key matters relating to patient safety and the clinical negligence system are discussed. The patient safety system and the clinical negligence system are key drivers of costs to the NHS, and need to be looked at hand in hand.

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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