Written evidence submitted by Fletchers Solicitors (NLR0012)

• What is the impact of the current cost of litigation on the financial sustainability of the NHS and the provision of patient care? 

To link the cost of litigation to the sustainability of the NHSR is neither fair nor appropriate.  The cost of litigation arises out of the fact that a patient has been harmed and, as a consequence, have a right to redress under the principles of common law.  Primary focus has to be on patient safety, learning from past mistakes and reducing the number of incidents of avoidable harm.  Fewer injured patients will lead to less litigation and reduced cost.   The focus must be on preventing the harm not the cost of the harm caused.

It is important to consider the cost of litigation in the context of the NHS budget.  The NHSR Annual Report 20/21 confirmed a reduction in the cost of clinical negligence claims (for damages and cost) compared to the previous year. This cost represents 1.5% of NHS England’s budget and a drop in total spend over the two previous years. 

There is no evidence of the costs increasing.

• 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? 

An award of compensation and the promotion of learning to avoid repeat harm are two very different things and should be treated as such.  The principle of common law provides that the wrongdoer pays the injured party compensation to place them back in the position, as far as possible, as they would have been had the negligence not occurred.  A compensation award is not a windfall. 

Learning from past harm must be used to make considerable improvements in care and treatment provided to reduce further avoidable harm.  This will lead to reduced numbers of claims.  Steps are being made in the right direction, but more needs to be done and progress is disjointed due to clear disparity in the commitment and approach between different Trusts. 

Trusts must take the duty on Candour seriously.  There is a need to be transparent when something has gone wrong and be quicker to offer a meaningful apology.  Many patients simply want an apology or response to a complaint.  More often than not, neither are forthcoming leading to a compensation claim as a last resort.   This lack of transparency, continued refusal to respond to complaint correspondence or worse refusal to acknowledge accountability and/or responsibility further negates a patient’s trust in the organisation that has harmed them.

• How can clinical negligence processes be simplified so that patients can receive redress more quickly? 

Trusts must have meaningful and consistent adherence to the Duty of Candour and a willingness to engage with and provide proper support for those injured.  If this happened, it would ensure that, when claims are brought, there is more openness between the parties leading to quicker resolution of the issues. 

There is evidence of changing attitude between claimant and defendant representatives to work in a more collaborative manner resulting in speed and efficiencies in the current process.  Avoidance of delay at key stages is key, including timely delivery of complete medical records, adherence to time frames, willingness for collaboration and communication which would result in speedy resolution for the injured patient.  Sadly, a delay and defend approach continues to hold back the speed of redress and only serves to increase costs.  

• How can collaboration between legal advisors be strengthened to encourage early and constructive engagement between parties? 

Collaboration between Fletchers and NHSR and panel firms has greatly improved following a number of initiatives over previous years.  There has been constructive engagement to agree and trial collaborative ways of working to increase the speed of resolution often negating the need for court proceedings.   This has included a pilot scheme in 2017 between Fletchers, NHSR and a panel firm to consider ways of working outside of the protocol; commencement of bulk ‘resolution’ meetings since 2018 with NHSR and panel firms whereby cases are discussed on a WOP basis, to reach either settlement, discontinuance or court proceedings earlier than they would do ordinarily; and a current pilot process with NHSR considering alternative ways of working and testing set points of communication withing the protocol.

True collaboration and engagement builds trust and provides both speed and efficiency, thereby reducing cost.  This is not detrimental to the injured patients right to compensation for the harm caused.

• What role could an expanded Early Notification scheme play in improving transparency and efficiency system-wide?

There remain concerns in the ENS due to a lack of engagement, transparency, and independence.  The positive impacts are yet to be seen.

• 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?

Views have been provided in the CJC report for which we participated as part of the claimant group.  We await the Governments recommendation based on the consultation. 

We remain concerned however, with regards to the lack of understanding of the impact upon an injured patient in this ‘lower value’ quantum bracket.  ‘Lower value’ does not equate to low complexity or reduced/low level of impact for that patient. There is grave concern regarding access to justice for these injured patients.   The introduction of a fixed cost regime will seek to reduce cost and not reduce harm.  Patient safety and learning have to be the primary focus.

• To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making? 

An injured patient is not seeking to apportion ‘blame’ on an individual but seek redress for the harm that has been caused.  It is unhelpful to use such language as it the trust that will apportion blame not the injured patient.  There is a distinct difference between blame and fault and what is required is a timely acknowledgement of accountability and responsibility. 

• How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action? 

Patient safety is key, and learnings must be taken from all harm suffered to make considerable improvements and reduce all avoidable harm.  This is central to this issue.  Communication between Trusts must improve as there continues to be disparity between approaches taken.  We see too often improvements in one trust only for another to continue to make the same mistakes. 

• 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? 

As stated above this is an internal issue not one caused by litigation.  The common law rules do not seek to lay blame. They seek to establish if the level of care provided fell below an acceptable standard, it is a test to see if the treatment was negligent and, if it was, compensation should follow.  It is not about blame and clinicians should not see it as such.

Increased collaboration and engagement in various forms of ADR allows for transparency, an opportunity for an honest discussion leading to greater understanding of the circumstances of the incident that has caused harm.  The benefits being that this provides redress, answers and often and much needed apology, not blame. 

• 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? 

Adherence to the duty of candour, speed, honesty and transparency in dealing with complaints will lead to fewer claims being pursued. 

• What legislative changes would be required to support these changes? 

To alter the current legislative process for medical negligence cases will lead to reform of the entire principle of tort and civil justice process.  It is not legislation that is an issue, the costs are decreasing.  Patient safety has to be addressed leading to less avoidable harm, less case being pursued and further reduction on cost.

The importance of 100% compensation can’t be underestimated.  Compensation does not enhance a patient’s life, it is not a windfall.  The award attempts to put them back in the position they would have been had it not been for the negligence, and more often than not it is insufficient.  The ability to recover the cost of private treatment is key to an injured a patient’s recovery.  Treatment provided by the NHS can be very slow, leading to delayed recovery and increased financial loss and harm.  The NHS is now facing huge delays in treatment due to the pandemic.  A repeal of section 2(4) of the Law Reform (Personal Injuries) Act 1948 would impact not just the injured patient but would have catastrophic consequences on the NHS and the provision of services, leading to more harm.

Oct 2021