New inquiry: NHS litigation reform
22 September 2021
The Committee has launched a new inquiry to examine 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 to promote future patient safety.
Figures show that in 2020/21, £2.26bn was spent from the NHS budget to settle claims and pay legal costs arising from clinical negligence claims. A further £7.9 billion was spent on compensation from claims settled in previous years, meaning that over £10bn of money was spent on clinical negligence claims which could have been spent on patient care. The total potential liabilities arising from all negligence claims made up to the end of 2020/21 was £82.8bn, increasing by about £5.7 bn every year.
The inquiry builds on the work of the Safety of Maternity Services in England Report which concluded that the clinical negligence process was failing to meet its objectives for both families and the healthcare system. It called for the Government to bring forward its full review of litigation reforms and in particular to:
- implement the Rapid Redress and Resolution Scheme in full for maternity safety claims.
- bring forward proposals for litigation reforms that award compensation for maternity cases based on whether an incident was avoidable rather than a requirement to prove clinical negligence.
Terms of reference
The Committee invites written submissions addressing any, or all, of the following points:
- What is the impact of the current cost of litigation on the financial sustainability of the NHS and the provision of patient care?
- What are the key changes the Government should consider as part of its review of clinical negligence litigation? In particular:
- What changes should be made to the way that compensation is awarded in clinical negligence claims in order to promote learning and avoid the same problem being repeated elsewhere in the system?
- How can clinical negligence processes be simplified so that patients can receive redress more quickly?
- How can collaboration between legal advisors be strengthened to encourage early and constructive engagement between parties?
- What role could an expanded Early Notification scheme play in improving transparency and efficiency system-wide?
- The Government has reiterated its intention to extend fixed recoverable costs, which limit the amount that can be paid out to meet legal costs, to clinical negligence cases with settlements of less than £25,000. At what level should these fixed recoverable costs be set, and are there any circumstances in which they should not apply to low value clinical negligence cases?
- To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making?
- How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action?
- What changes should be made to clinical negligence claims to enable a move away from a blame culture and towards a learning culture in the NHS?
- How can the Healthcare Safety Investigation Branch work to improve short term responses to patient safety incidences and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies?
- What legislative changes would be required to support these changes?
The deadline for submitting evidence is Wednesday 20 October.
The Chair of the Committee, Rt Hon Jeremy Hunt MP said:
“Our inquiry into maternity safety found that too often the mechanism for awarding compensation, which is based on proving gross clinical negligence, perpetuated a culture of apportioning blame.
“This adversarial legal process not only costs the NHS increasingly eye-watering amounts of money but prevents lessons being learnt when things go wrong. We will be examining in more detail in this inquiry how the litigation process should be reformed to save vast sums being spent on compensation, and crucially to promote patient safety in the future.”