By John Tingle
It is fair to say that the British public are generally speaking very proud of our National Health Service in England, and treasure it greatly. The NHS Constitution sets out the seven key principles which guide the NHS in all its activities, and these include:
- The NHS provides a comprehensive service, available to all.
- Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament.
The NHS Care Model
The NHS free care model does encounter, in practice, severe challenges: there is a growing elderly population, we have new medical advances, and so on. Health care innovation does not stand still, nor does the demand for NHS services. We see an infinite demand for limited health care resources, and, at the same time, there are financial books to balance. In addition to this economic reality of demand and supply, we also have an increasingly large clinical negligence compensation bill. The figures go into the £billions.
Stemming the Rise in Negligence Costs
Urgent calls have been made in many quarters, including the government, to try and stem the rise in clinical negligence costs, as the growing expense is taking away scarce financial resources which could be well put into front line health care services. However, saying this, we must also remember that a patient has been injured by those who were meant to care for them, so we must be careful not to prejudice their right to sue for compensation. Any reform proposals made must carefully tread between these two interests.
The House of Commons Health and Social Care Committee
The House of Commons has a Committee on Health and Social Care Committee (“the committee”) which holds to account the Department of Health and Social Care and government health policy. The committee has recently conducted an inquiry into NHS litigation reform and has now published its report, which contains controversial reform proposals for medical malpractice litigation, or what is termed in the UK, “clinical negligence litigation.” Lawyers and high costs feature widely in the report.
The following paragraph from the report sets the scene and tone for the rest of it:
At the same time, the costs of the system have continued to grow at an eye-watering rate. Ten years ago, the NHS paid £900 million in damages; last year it was £2.17 billion – equivalent to the annual running costs of the biggest hospital Trust in England or four average sized hospitals. This sum is set to double over the next decade to £4.6 billion, and around a quarter of such costs go not to families but to lawyers.
NHS Litigation Inquiry Report
The committee’s report and the oral and written evidence submitted to it should be read by all those concerned with health litigation, patient safety, and health quality. The report and the evidence submitted casts excellent insights into the issues of compensating patients for clinical negligence, system priorities, balancing the interests of the NHS with those of the injured patient, and so on. The efficacy of our tort-based compensation is closely examined in the report, and there is a comparative discussion of how other countries deal with such issues. No-fault based liability schemes are discussed, along with other matters.
A New Administrative Claim Resolution Body
A key issue in the report is the role of a tort-based clinical negligence compensation system and whether it promotes or detracts from patient safety lesson learning and proper culture development. The committee answers this question in the affirmative, it does detract. The committee’s central recommendation is for the creation of a special administrative organization to handle claims based on a lower claim’s threshold, avoidability, rather than the current, higher, tort negligence-based one. This will be a compulsory first port of call for claimants. If the matter is not resolved by the new administrative body, then claimants can access the normal tort based clinical negligence system. The committee states:
The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning. We recommend that when a patient is harmed, they or their family should be able to approach an independent administrative body which would investigate their case and determine whether the harm was caused by the care they received and if, in the ordinary course of events, it was avoidable. The investigation would be inquisitorial, it would look at the facts of the case, and it would focus on how all parts of the system delivered care to the patient in question. Should it be found that the patient suffered harm because of their care, they would receive compensation.
A Failing Tort Compensation System
The committee takes the view in their report that our present tort-based clinical negligence compensation system is a failing one and focuses too narrowly on discrete, narrow issues and interests, and does not promote system-wide patient safety improvements and learning. The current system, they explain, is too focused on the parties to the dispute and does not consider the broader picture.
Tort Versus System Improvement
Evidence submitted to the committee’s inquiry, particularly by the Bar Council, spells out the limits of the law of tort’s role in driving system wide patient safety improvements. Arguably it is not the role of tort law to drive system wide patient safety improvements. The Bar Council states:
To put it another way the NHS is in law no different to any other tortfeasor. Litigation has never really been understood to encourage lesson learning and commitment to change and indeed to suggest the tort system should encourage this, as a principal aim, is to misunderstand the purpose of tort law which is to compensate the victim and not to punish or prevent recidivism by the tortfeasor.
Excellent Food for Thought and Research Material
The committee report, along with the oral and written evidence submitted to it, provides discussion of the fundamentals of our tort-based clinical compensation system and lots of rich legal research material on clinical negligence litigation, its aims, and objectives. It remains to be seen how influential the report will be on the government, which is currently looking at reforming the system. A consultation document on this is promised soon, as John Hyde writing in the Law Society Gazette reports.
Fundamental Change?
I doubt whether fundamental change to our clinical negligence system is on the horizon, not in the sense of adopting, for example, a no-fault system. In my view, our tort-based clinical negligence compensation will survive — it has served us well over a great deal of time. We do, however, need to separate out in our minds what we want our compensation system to do and its conceptual underpinning. Litigation and patient safety lesson learning/culture development are two separate matters that cannot be combined. The latter are arguably beyond the law of tort’s remit.
