Written evidence submitted by Royds Withy King Solicitors (NLR0015)
The question itself underscores the problem with the current discourse on clinical negligence litigation costs (which is not evidence-led) for the following reasons:
In relation to 1 above, the cost of current litigation, that is damages and Claimant legal costs, is reducing as detailed in the NHSR Annual Reports of 2020 and 2021. This is despite increasing Defendant costs. Because of the amount of time it takes to investigate and conclude clinical negligence claims, the effects of Lord Justice Jackson’s litigation reforms are only now being felt in full, and we can expect the trend of decreasing Claimant costs to continue.
In relation to 2 above, we need to be careful not to put the cart before the horse. Improved patient care and learning from errors needs to take precedence in the discussion about NHS litigation costs. More than 20 years ago the Chief Medical Officer published a report entitled “An Organisation with a Memory”, which urged the NHS to learn from its mistakes, including to identify and remedy the causes. That report rightly identified litigation as a rich source of data from which the NHS should learn. Learning did not happen. In 2016 alone, the Care Quality Commission published two separate reports pointing to the failure of NHS investigations to identify the cause for accidents; in 2017 the National Audit Office was critical of the failure of the NHS to used data gathered from claims. Further, in recent years we have seen a multitude of scandals (particularly in maternity care) and the first ever Duty of Candour Prosecution. A taxpayer funded emanation of the state has to be accountable to the public who pay for it, and as it is clear that learning and improvements in patient care are not taking place, this needs to be the focus.
In relation to 3 above, the cost of litigation needs to be put in its proper context. As a percentage of budget, the claims ratio is in fact far below the level of indemnity required in other professional sectors. Further, the impact of top-down funding has been a cause for concern for the NHS for quite some time. The evidence that front line services are underfunded is palpable (only recently there were reports of an Oncology having to cease chemotherapy treatments). The link between underfunding and patient care, (and thus litigation costs) is straightforward.
There are no changes to the way that compensation is awarded in clinical negligence claims that the Government should consider, aside from perhaps an uplift in the bereavement award in fatal claims (which is still pitifully inadequate). We have a system of compensation based on the tortious principle of placing the victim in the same position (as far as possible) as they would have been in but for the negligence. It is a well-established principle of common law that applies across all of tort (not just clinical negligence) and one that we should be proud of. It is a principle of 100% compensation which the Government is on recent written record as intending to uphold e.g., the Lord Chancellor’s last discount rate review summary.
NHS Trusts are emanations of the state. It is morally and constitutionally untenable for the state, as the tortfeasor, to insulate itself from full and proper claims and/or to reduce its accountability to its victims. In the event that Tort is to be reformed, it would have to be across the entire civil justice system and would take primary legislation to achieve. To apply tort reform to clinical negligence litigation in isolation would be an abuse of power.
Notwithstanding the constitutional implications, Tort reform would not be effective in saving the tax-payer money as the cost of undercompensating victims would have to be picked up elsewhere. For example, the NHS would have to pick up the cost of the therapies and medical interventions that would otherwise be provided privately to ‘make the Claimant whole’, there would be a marked uplift in benefits reliance due to disability removing claimants from the workplace, and the social care bill would increase significantly to bridge the gap between the insufficient level of damages and the Claimant’s actual needs.
The focus, as mentioned above, needs to be on reducing harm to patients in the first place in order to reduce compensation and litigations costs. The disparity in patient care between Trusts needs to be examined carefully. There is, for example, a divergence in learning and improvement between Trusts in relation to CP and Erb’s Palsy, as well as pressure sores and never events generally. Some Trusts perform exceptionally well, whilst others are repeat offenders. Consideration needs to be given to potential structural reform given that some Trusts repeatedly make the same errors.
Finally, it is noted that the recent recommendations of the Select Committee, including for no-fault compensation, are not costed and incomparable as between the funding and demographics of the different countries concerned and England and Wales.
The Clinical Negligence Covid 19 Claims Protocol is a good example of how a collaborative approach between Claimant and Defendant signatories can significantly reduce costs. Litigation was avoided on many cases due to the Protocol and as such savings of many millions of pounds were made.
Notwithstanding the above, barriers to cost efficiency remain on the Defendant side. There are often two levels of legal input before Claims are ultimately reviewed by specialist clinical negligence Panel Solicitors. The first level is the in-house Legal Teams at Trusts who, in many instances, do not appear to have delegated authority to make early admissions of liability following notification in straightforward cases. Therefore, costs are increased obtaining expert evidence which might otherwise not have been needed. The Second level is the Claims handlers at NHS Resolution – usually following submission of a Letter of Claim. Often, and particularly in lower value claims, the claims handlers are inexperienced and therefore attempts at narrowing the issues are protracted and regularly unsuccessful. This often results in barristers having to be instructed and proceedings being issued. At this point, a third level is introduced – Panel Solicitors. Not infrequently, once Panel Solicitors are instructed, they are able to properly evaluate the claim and make recommendations for settlement. Sometimes before a formal Defence is forthcoming. By this time of course barrister’s fees and Court fees have been incurred. This is neither an efficient, nor cost effective, way to resolve straightforward claims. We would suggest that some level of restructuring, streamlining, and early screening by experienced practitioners would assist.
To improve the efficiency of the administration of lower value claims (NB lower value does not equate to lower patient safety learning potential and in fact probably the reverse), SCIL have also developed a Scheme which suggests a way to improve the system and also allow for learning without the fear of recrimination for clinicians and to avoid future harm.
SCIL, AvMA and NHSR are currently working well together. As the majority of lawyers dealing with this work are either AvMA or Law Society Panel members, being specialists ensures continuity when talking with Defendants such as MDU, MPS, NHSR and their panel firms. The SCIL Scheme further encourages collaborative working and resolution of claims without the need for Court proceedings.
Early screening of lower value claims by an experienced Solicitor (either at NHSR or Panel Firm level) would also assist.
The major issue here is independence. There have been numerous reports of ill treatment of NHS Whistle-blowers, and resultantly, many clinicians fear recrimination, sanctions, or ‘scape-goating’ by their employer and/or regulator. This is a barrier to honest and transparent reflection (and therefore to learning). A Scheme which was more independent from the NHS would go a long way to dissolving this barrier. There also appears to be a lack of training about the system which means that many Trusts do not engage with it, or families are unaware that their child’s birth has been referred to this scheme. It is also concerning that families are not being signposted to organisations such as AVMA at any stage of the ENS process so that they can obtain independent advice on the process and its outcome. This in itself currently undermines the transparency and any semblance of independence in the scheme, and therefore its credibility generally.
SCIL has already responded extensively to the Government’s FRC proposals and await the consultation. We have provided the Government with the SCIL Scheme which offers a solution to lower value claims, without the associated fixing of costs, and have suggested a pilot of the scheme over a trial period. Please refer to the SCIL Scheme for details.
As per our answers above however, it is our view that the proposal for fixed recoverable costs under £25,000 ignores the very clear evidence that costs and damages are already decreasing, that it is a reduction in patient harm that will ultimately reduce the litigation bill, and that because value does not equal complexity/the actual costs of investigating the claim, fixed costs simply result in an access to justice issue as experienced lawyers will exit the market at this level. Not only would this reduce access to injured victims of negligence, but it will not reduce the litigation bill. Inexperienced claims companies and/or non-specialists will run claims without the benefit of knowing which claims can be screened out from the beginning – increasing the work and costs burden on both sides. It is of no benefit to the Select Committee for us to suggest the level that costs should be set at as the exercise, to date, has been conducted without reference to the evidence and is based on faulty assumptions.
The Committee has presumed that the system creates a blame culture. As per the recent Select Committee’s report into maternity services, there is no good-quality, hard, independent evidence to support litigation adversely affecting the running of the NHS – there is only supposition and anecdotal information. In recent years there has been a change in stance at NHSR, with a greater emphasis on resolving claims and learning, which SCIL welcomes. The NHSR annual report for 2021 highlighted the increased collaboration with SCIL and AvMA, and reported decreasing legal costs, which is also to be welcomed.
Unfortunately, as per research for the outgoing Labour Government over 11 years ago, there is in fact no such thing as a “compensation culture” in injury law – there is only a perception of one, which is perpetuated by the media and politicians talking about it as if it does exist.
There is certainly however something that appears to be at the heart of some Trusts with reports of bullying, discrimination, and fear of whistleblowing. There was £27m paid in claims by NHS employees that they were stressed or bullied in the previous 5 years in a recent NHSR report (see link below). That report found no evidence that clinical negligence litigation was part of the “blame culture”.
SCIL shares the view of Mathew Syed and others that “black box thinking”, to analyse the causes of errors, which are rarely individual errors, is the way to improve patient safety and reduce the cost of litigation. Preventing unnecessary harm to innocent patients is the key, rather than incorrectly focusing upon the result of that i.e., clinical negligence claims – or to put it another way, looking at it from the wrong end of the telescope and so distorting the picture. The SCIL Scheme has Patient Safety at its core, with the proposal of Patient Champions (similar to the Patient Safety Commissioner proposed by Baroness Cumberledge) and could be utilised across the NHS and other health care systems. By working with specialist lawyers at SCIL and with AVMA, lessons can be learnt and patient safety maintained and improved.
Lord Edward Garnier was reported as saying on the proposed reforms about the “delay, deny and defend” culture and this is what needs to change. It should be remembered that 90% of potential clinical negligence cases are investigated by lawyers and do not proceed. The ones that are progressed are tested as per the very high legal thresholds which currently exist at common law, supported by like for like independent medical experts and are not pursued lightly but after much investigation and assessment. Clients/patients do not come to pursue medics for revenge, and if they did, we would not pursue those matters, but do so in order to receive compensation for the harm caused or as most clients will say to us, to avoid it from happening to someone else. Remove the specialist lawyers, as the current proposals may in fact do, and NHSR’s costs of dealing with Litigants in Person will increase at least 900% i.e., the opposite of any costs savings will be achieved.
It is imperative that lesson learning is at the heart of any clinical negligence system. Patient safety must come first, and a reduction in the litigation bill will necessarily follow.
It is also essential that responsibility is taken at Trust level and beyond to inculcate a culture of learning, transparency, and reflection such that well-meaning individual clinicians do not fear recrimination or reprisal when raising issues in respect of their own practise or the systems, processes and protocols of their employer – with patient safety at the forefront of their mind.
Clinical negligence claims should be viewed as a learning opportunity, and a way to reflect on current practise and improve standards. A collaborative approach would put the patient front and centre, and early admissions would mean that we could work together to rehabilitate and plan pathways of care for patients who are negligently injured.
We also support the idea of a Patient Safety Champion, as recommended by the SCIL Scheme, which would provide even greater opportunity to identify and learn from errors and to share learning across the whole of the NHS.
The NHSR Report referred to above does not find any evidence of a blame culture caused by clinical negligence litigation, rather the blame culture (if it exists) is one within NHS organisations. It is simply wrong to lay the blame for that at the door of the innocent victims of clinical negligence.
The short answer is that it will involve a lot more funding for it to increase the breadth, most importantly the depth to capture all patient safety learning points, and speed of its investigations. It is also important that communication with the patient or family is ongoing. Often the length of investigations, and the lack of communication, leads patients to feel that the matter has been forgotten. It is at these points that patients will often seek alternative redress.
External investigation of incidents is to be welcomed as internal investigations are, for obvious reasons, carried out by the colleagues and employees of the organisation which creates a risk of defensive investigation. It is true that many patients would not resort to litigation if they received a full and honest apology together with an explanation of what went wrong and confirmation of the steps that are being taken to prevent the same thing from happening to another patient.
However, financial circumstances and the provision of care, equipment and therapies in the NHS sector means that many will be left with no choice but to seek compensation. For those patients, an apology is the starting point but not the end point.
The current tort system works well and has adequate tests in place to ensure that matters are looked at properly and properly compensated. As above, any tort reform would have to be across the whole of the civil justice system to avoid a very easy judicial review of its reasonableness, and so would require primary legislation to alter the common law and it’s long-established 100% compensation principle which the Government is on recent public record as supporting. Given that targeting clinical negligence claims is to approach the issues from the wrong end, it is difficult to see how there would be legislative appetite for this non-solution to the actual issue of failure of patient safety learning across the whole of the NHS - which in fact probably needs better-spent scrutiny of meaningful NHS structural reform instead. If we make the NHS safer, we have no need of other reform.