Written evidence submitted by Clarke Willmott LLP (NLR0013)
Clarke Willmott LLP is a full-service law firm with a Clinical Negligence Team who act only for Claimants. This submission is provided by the Clinical Negligence Department
The Committee invites written submissions addressing any, or all, of the following points:
This question wrongly assumes that the problem is the cost of litigation, rather than the unacceptable fact that patients continue to be harmed at such significant levels, that they seek redress. Our submission is that if the NHS had a properly embedded system for learning from harm this would result in significant reductions in the costs of litigation.
Further, the impact of the current cost of litigation is not as currently presented either by government or in the media.
The provision for potential claims in the future for all financial years is far greater than the actual sums that will be paid out on an annual basis and does not reflect the actual claims that will be settled.
The litigation budget is entirely separate from the NHS budget and does not impact on the budget for patient care.
Finally, the cost aspect of current litigation for Claimants is reducing as shown in the annual reports of NHSR for 2020 and 2021, albeit Defendant costs are increasing.
Changes to compensation awards
The question being posed here is the wrong question. Change in the way awards for clinical negligence are made will not in itself either promote learning, neither will it avoid the same problem being repeated elsewhere in the system.
We encourage and support learning from harm but changing the way compensation is awarded would only exacerbate the suffering that those families have already endured and leave them with inadequate means and support for the future. Patient harm causes real economic loss to people and this is often picked up by other public bodies through the social security system, local authority provision and the NHS in long- term future support. The problem would just be shifted elsewhere if awards were reduced.
Our submission is that to save money, prevention is better than harm. If the committee is dedicated to saving money in the round, then it should understand that the system of learning from harm must be robust and uniform throughout each trust and healthcare system. Currently the fractured and diverse way in which different organisations deal with patient safety leads to the same problems being repeated week in, week out in different organisations. The system of learning must be cohesive and uniform so that harmful events can be prevented. This is the best means of saving substantial sums of money in the long term as cases will never have to be initiated.
An example of good practice is the improvements which were made in a previously failing maternity unit at Southmead Hospital in Bristol in 2000. This unit is often cited as the safest place to give birth in the UK.
Since the training was introduced, there has been a 50% reduction of hypoxic events during birth and a 70% reduction in Erb’s Palsy injuries to the shoulder. If replicated among all NHS trusts annually that would reduce the claims by an estimated £64 million per annum.
Further, there is a well-established principle of common law that provides that the wrongdoer pays compensation to put the victim in the same position, so far as money can, that they would have been in, absent the negligent event.
Tort reform only in respect of clinical negligence cases would have the effect of creating a different system for this category of cases. If there was to be reform it would be across the entire civil justice system, which is not a matter for the Department of Health or this committee but would require extensive analysis across the profession and through the Ministry of Justice.
Dismantling a fundamental principle of the English justice system which has underpinned our moral code since before the Norman Conquest is both disproportionate, misconceived and has the potential to fuel the law of unintended consequences, giving rise to damage to and disrespect for the legal system.
Simplifying processes with earlier redress
Currently there is a culture of “Deny, Delay, Defend” when cases are handled by Trusts, NHS Resolution and the solicitors instructed to represent the Trusts/ other healthcare settings.
An example of this is a case, investigated at Trust level with findings of harm identified, then being followed by either NHSR or their solicitors robustly defending the claim. Months or years later, after much expense in litigation, the claim is settled. These are unnecessary costs and it is for those defending these cases to reflect on their practice and consider how these cases could be handled much more efficiently with prompt admissions which will result in much reduced costs on both sides. If these cases are released from the system, those cases which are more complex can be focused on and dealt with more efficiently as well.
If just those cases where an internal investigation had been initiated were dealt with in this way, with prompt admissions, the costs savings would be significant.
There was a constructive approach during the pandemic which has resulted in benefits. This includes the deferral of issue of court proceedings, saving both court fees and the work involved in preparing a case for court.
However, practice is not uniform between case handlers at NHSR or solicitors representing NHSR. To benefit fully from reform, NHSR should audit their staff and firms acting for them and identify where there are unnecessary costs and points taken which should not have been, which has protracted litigation.
The Duty of Candour has been in place since 2014.
There should be a greater willingness to engage with patients whose care has not met standards and who have suffered harm in the light of the Duty of Candour. A misconceived interpretation of the duty of candour is commonly applied by Trusts, for example indicating that they have complied with the duty by informing a family that a relative has died in hospital, without explaining why or what may have caused that death.
The Early Notification scheme in respect of birth injuries has been in place since 2017 and in its first report in 2019, it was identified that 24 families had received an early admission. It is understood that the scheme is due to report again so the figure to 2021 of early admissions is not available currently. Without scaling up such a scheme considerably, it would be very difficult indeed to achieve meaningful results as it was only able to help 24 families in the first couple of years of operation.
It seems that unless an expanded scheme was properly resourced it would not be a sensible way to try and improve efficiency and may continue to prolong cases.
It is a scheme which is lacking in independence and families are not being signposted to claimant organisations such as AvMA (who support patients injured by their treatment) at any stage of the process and this undermines its credibility.
After a period of increases in costs, overall costs and patients’ lawyers’ fees are now on a steady downward shift but NHS lawyers’ fees are going up. A major factor in the reduction of costs on the claimant side is the effect of LASPO reforms. Costs are therefore coming down without a fixed costs scheme.
We do not agree that FRC is appropriate in any clinical negligence claim as the costs are not necessarily linked to the value of the claim and introducing fixed costs to cases valued at £25,000 or less, potentially exposes claimants to being unable to have representation in cases where the mistakes made are grave.
A lack of representation will not make these cases go away but will move the problem to the courts (and potentially in-house to the Trust’s in-house teams) who will be overwhelmed with litigants in person; a problem that should not be ignored as similar reforms in the family courts led to such an unintended consequence.
There are likely to be more claims brought in such a system as there will no longer be the triage system which is operated by claimant lawyers to assess potential new claims of lower value so both claims with merit and without may be presented to the court.
Further there should be equality of arms in any scheme. If fixed costs apply to Claimants, then Defendants should be restricted as to the resources that they can apply to any claim. As drafted, currently there would be restrictions on claimants’ costs but not defendants.
They already have the benefit of these hidden costs which are not accounted for publicly:
In a Fixed costs system this existing inequality would be further compounded by the claimant having even smaller funds to address the imbalance. Defendants will in fact be further incentivised not to agree or settle and to delay claims.
Fixed costs at any level is a blunt tool to try and fix the wrong problem.
In 2019/20 claimants succeeded in 81% of cases where court proceedings were issued (79% 2018/19). Unwinnable cases are being defended at huge cost to the taxpayer.
Clinicians and patients who make a claim are caught up in a process which leads to misery and stress on both sides. Clinicians are reinforced through the process of defending a claim in the view that the care provided was acceptable rather than acknowledging early on that care was inadequate. Some clinicians never accept failings in care, even in cases where significant sums are paid in litigation and there is no learning available.
The entire process from the hospital investigation onwards is geared towards protection of clinicians, staff and reputational damage and has no regard for the individuals damaged.
Responsibility for creating a “blame culture” lies first and foremost with the senior employers of staff involved in clinical harm. They should be at the vanguard of promoting a supportive culture in which reporting of incidents is the norm and patients are put first, ahead of concerns about reputational harm. Instead of a ‘blame culture’ within organisations, this should become a ‘learning culture’
It is wrong to implicitly suggest that Claimants, who bring claims and engage in an adversarial process are promoting a “blame culture” when those who can do most to prevent harm are failing to manage their own obligations properly. Claimants are caught in a system, not of their making and they did not welcome the harm suffered, any more than they want to litigate.
In a 2019 report from NHSR it was noted that £27m was paid in claims by NHS employees for stress or bullying and NHSR’s own report found that there was no evidence that clinical negligence litigation was part of the “blame culture”.
Action against Medical Accidents (AvMA) and the Society of clinical Injury Lawyers (SCIL) and the Association of Personal Injury Lawyers (APIL) have campaigned for many years for learning from harm and most claimants are motivated to make a claim by the desire to prevent what has happened to them from happening to others. We are members of all three organisations and wholeheartedly wish to see learning at all levels to prevent harm but have yet to see that implemented at Trust level where the desire to avoid reputational harm seems to trump true learning from patient incidents.
There are no sanctions in the proposals or Civil Justice Council working party report which prevent a Defendant hospital Trust from denying liability, delaying and making unreasonable demands of claimants.
If the mindset of the Trust is to defend the indefensible then logically, they do not have a learning culture embedded in their organisation.
As stated in the response to the first section, changing clinical negligence claims with the idea that this will enable a move towards a learning culture is not bound to result in improvement. Changing clinical negligence claims will potentially reduce awards to claimants which will push their financial loss onto other public bodies, or if the change is to introduce fixed costs then it will simply flood the Trusts’ legal teams with all cases currently triaged by lawyers and prevent claims with merit from being properly considered.
The solution to promoting a learning culture is to champion patient safety at Trust level, learning to prevent harm and deeply embedding that from junior members of a clinical team, all the way up to Chief Executive level.
Trying to use reform to the claims process to achieve that result is the wrong proposal and will only shift the current problem and potentially overwhelm trusts in further claims.
HSIB has started to broaden the offering and to look at common themes within claims.
There is no direct dialogue with claimant lawyers and a lack of interest in the vast wealth of experience, expertise and understanding of a wide variety of patient incidents.
The changes that we propose are to enhance and support patient safety and learning from incidents of harm, not legislative change.
There is a perception that patients can be harmed with impunity for those who have caused harm. We recognise that a punitive system which might harm the wellbeing of hardworking staff and their career prospects would be likely to fail. However, for too long, Trusts have failed to implement a culture that will develop and enhance learning and in some Trusts bad practice has simply been reinforced by clinicians, becoming endemic – in particular the maternity issues now under review by Donna Ockenden at Shrewsbury and Telford Hospital NHS Trust.
Currently, Trusts are preoccupied with reputational damage over learning from a past event. Fundamentally, that must change, at the highest level within each Trust. If the NHS was a safer place, then there would be no need for legislative reform.