Written evidence submitted by The Medical Defence Union (NLR0019)

Opening remarks

1. The Medical Defence Union (MDU) is pleased to have this opportunity to submit written evidence to the Health and Social Care Select Committee’s inquiry into NHS litigation reform.

2. The MDU is the UK’s leading medical defence organisation. We are a not-for-profit, mutual organisation, established in 1885. We are owned, and run-on behalf of, our members who include around half the doctors currently working in the UK.

3. We are proud to stand with, and defend, the professional interests of doctors, dentists, and other healthcare professionals across the United Kingdom. Our support for members spans a wide range of professional practice areas from clinical risk management, advice, and education, to assistance with complaints, inquests, regulatory inquiries, disciplinary matters and indemnity for clinical negligence claims.

4. The MDU has long been a strong advocate for legal reform to address the unsustainable cost of clinical negligence. We have been making the case to government since the late 1990’s. As such, we warmly welcome the importance the Committee is attaching to this and the attention it is drawing to the subject. The time for action is now.

5. We also note the imminence of a consultation on the subject by the Department of Health and Social Care (DHSC). The MDU has engaged closely with DHSC officials on this work.

The impact of the cost of clinical negligence litigation

6. Last year, NHS Resolution (NHSR) paid out £2.2 billion in clinical negligence payments.[1] At a time when government spending is at its highest level for decades, it is important that figures such as £2.2 billion are seen in context.

7. For instance, let us take the newly announced Health and Care tax levy of 1.25%. According to government sources, a typical person earning £30,000 a year can expect to pay circa £255 extra a year as a result of this levy.[2] That means, in order to cover those clinical negligence payments – it would take the tax rise of 8.7 million people earning £30,000 before a single penny of this new levy made its way to the frontline patient care, to begin to address the elective surgery backlog and the huge issues that exist in social care.

8. In January 2021, the House of Commons Public Accounts Committee published its report on the Whole of Government Accounts, highlighting some of the challenges public finances will face in the future.[3] Principal amongst them, was the provision of taxpayer money for liabilities associated with clinical negligence. It is striking that this was second only to the cost of nuclear decommissioning.

9. In November 2020, a report by HM Treasury showed that the provision for clinical claims is now worth a staggering £3,600 for every household in England, compared to £700 per household 10 years ago.[4]

10. This cannot go on. It is putting an unsustainable strain on the NHS and that affects us all: healthcare professionals, patients, and taxpayers.

11. Too often in debates and discussions about legal reform, the situation can be characterised as ‘them versus us’ – doctors versus patients, government versus the NHS. We should seek to avoid that trap in this debate. The NHS is there for all of us – healthcare professionals, their representatives, government – all of whom at one time or another have, or will be, patients in the NHS. We all want to see the NHS firing on all cylinders, with every possible penny of precious funding spent on patient care. That is why we need reform.

12. Compensation to those harmed through clinical negligence must be fair, but compensation must also be proportionate and affordable.

The distinct purpose of a clinical negligence claim

13. A theory often mooted is that clinical negligence claims play a role in ensuring patient safety and in holding individual healthcare workers to account for their actions. This is neither the purpose nor the effect of clinical negligence claims.

14. The singular function of a clinical negligence claim is to provide compensation for the patient.

15. The claims process determines whether the defendant had a duty care; whether that duty was breached and whether that breach caused the damage that requires compensation. The entire procedure is focused on finding evidence related to a single incident. It is not the intention of the litigation process for a clinical negligence claim, to investigate or make any findings about any wider implications.

16. When something does go wrong, it is widely recognised that the best way to learn lessons and improve safety is to investigate the matter as soon as possible after the event. This makes it easier to identify what went wrong and why. This means that, as soon as possible, any necessary changes can be made and lessons learnt and disseminated. That is why the MDU is an enthusiastic supporter of the Healthcare Safety Investigations Branch (HSIB) and the distinct role it plays following adverse events.

17. As well as HSIB investigations, we support robust local clinical governance measures to ensure that learning follows patient safety incidents - whether that occurs in a hospital or primary care setting. There should be appropriate systems in place to capture learnings across the healthcare system and this is not always the case currently. We discuss the HSIB further in paragraphs 25 – 33.

18. By contrast, clinical negligence claims are often brought many years (sometimes decades) after the incident and usually take several years to conclude, especially in relation to adverse events in maternity care where symptoms and signs of injury may not be immediately apparent, and the question of causation is typically even more complex.

Key reforms for the government to consider

19. One reason clinical negligence costs are so expensive is because a 1948 law still applies - S2(4) of the Law Reform (Personal Injuries) Act 1948. This means that personal injury defendants must disregard the availability of NHS treatment when paying compensation, and public bodies likes NHSR must fund based on private provision.

20. The MDU does not know what investment decisions are made by claimants with their compensation settlements, nor what proportion of that is spent on their care. That is of course to be expected. What is surprising – and should be of concern to this Committee - is that the four governments of the UK do not appear to have that evidence either. Given the vast sums of public money involved here, coupled with the fact that the NHS will provide care – irrespective of whether a person has had a successful clinical negligence claim or not – we believe that there is an essential job of work for government to do here in gathering this evidence base.

21. In our submission to the Committee’s 2020 inquiry into the safety of maternity services in England, we urged the Committee to endorse the repeal of this outdated law.[5] Consequently, we were pleased to see the Committee include it in its recommendations.[6] Through this inquiry, we once again call for it to be included in the recommendations made to government, as we believe it represents an important reform.

22. Compensation must be fair. We believe there is merit in exploring the possibility of establishing an independent body to define NHS health and social care packages, to provide an appropriate standard of care for all patients harmed as a result of clinical negligence. Compensating bodies, such as the MDU, should be required to fund a care package to provide the standard of care defined.

23. Finally, as we have previously discussed with the Committee, and as it has noted in its earlier recommendations to the government, the current system does not award compensation in an equitable way, as it differentiates between high and low earners. In two hypothetical, similar clinical negligence cases, the notion that the child of an investment banker should receive a higher compensation settlement than the child of a refuse collector, is not only outdated – it is perverse.

24. The MDU calls on the government to place a cap on earnings in clinical negligence compensation settlements, so those being compensated receive no more than three times the national average salary for loss of future earnings per year.

The role of the HSIB and a learning culture in the NHS

25. The task of fostering an open, learning culture in the NHS is a constant journey, not a fixed destination. The MDU is committed to playing its part in nurturing this culture, and we will support legislative measures we believe will help achieve that.

26. The MDU has considerable experience of sharing details of medico-legal cases with our members in order to highlight potential pitfalls and, while it can be helpful to share learning points from what has gone wrong to help clinicians to continue to practise safely, we should note that it is not always possible to do so in every case.

27. The MDU continues to enthusiastically support processes that are properly designed to enhance patient safety. We believe the Healthcare Safety Investigation Branch (HSIB) has a fundamental role to play in this.

28. We have long championed the move to put the HSIB on a statutory footing, so we welcome measures in the Health & Care Bill that allow for the formal inception of the HSIB as a statutory, independent arm’s length body – to be restyled as the Health Service Safety Investigations Body (HSSIB).

29. Being on a statutory footing will give the HSSIB a greater sense of permanence, enshrine its independence and elevate the status of its investigations. We want the HSSIB to be seen as the organisation best placed to develop investigation methodologies that are designed to improve learning from patient safety incidents.

30. The success of the new organisation will, like its forerunner, depend on effective collaboration and communication with doctors and their colleagues across the healthcare system, as well as with patients and their families. For the HSSIB’s investigations to yield the results we all want to see, with improvements identified in the interests of patient safety, it is vital that the much vaunted ‘safe-space’ in the Health and Care Bill –– is as robust and as safe as possible.

31. We are concerned that the Bill, as currently drafted, allows for coroners to be exempt from the prohibition of disclosure of HSSIB material. This would mean that individual coroners could routinely request material from the HSSIB’s investigations – naming individual doctors and other healthcare staff.

32. To ensure that the HSSIB’s ‘safe-space’ can work as effectively as possible; support the engagement of healthcare staff; reduce the prospect of fear and reluctance to engage with investigations and maximise the chances of HSSIB reports yielding meaningful improvements in patient safety - coroners should be removed from the list of exceptions to the prohibition on disclosure of HSSIB material. Otherwise, it could affect healthcare professionals’ willingness to be fully engaged and open with HSSIB investigations. Especially given the potential consequences of being named in a coroner’s investigation such as a fitness to practise investigation by their profession’s regulator and/or clinical negligence proceedings involving their employer (the trust).

33. We would urge the Committee to support our calls for an amendment to the Health and Care Bill, removing coroners from the list of exemptions.

Alternatives to litigation

34. In the report following its inquiry into maternity safety in England, the Committee noted that the causes of maternity claims are often complex and multifactorial and, although individual failings were uncommon, the clinical negligence system perpetuates a culture of apportioning blame.

35. When considering what could potentially replace an adversarial process of clinical negligence litigation, the Committee pointed to administrative systems which have been adopted in other countries, such as the Swedish Safe Maternity Care Project. The threshold for compensation in the Swedish model is whether harm was avoidable: a lower threshold than proving that negligence caused the harm.

36. We note that while not an exact replica of the Swedish model, the 2016 National Maternity Review report - Better Births - proposed a rapid resolution and redress scheme for birth injuries which would not require that negligence was proven, but instead the test would be whether harm was probably consequential on the treatment given (or omitted).[7] This was explicitly linked to high-quality, patient safety investigations, squarely moving the focus of what happened from blame to learning. The scheme, as the Committee knows, has yet to be implemented.

37. Although the case for introducing an administrative compensation scheme for birth injury cases is well made, the MDU does not believe it is the answer to the wider clinical negligence liabilities crisis in England and Wales.

38. An administrative, no-fault scheme, applicable to all claims, would simply be unaffordable because the threshold for proving responsibility for harm is lower, thus almost certainly increasing claims and exacerbating the current cost situation.

39. It should also be borne in mind that the eligibility criteria and the administrative decisions of such schemes, would in all likelihood themselves be subject to challenge and litigation on a case-by-case basis. So, in effect, an administrative, no-fault scheme, applicable to all claims, would both dramatically increase the cost to the taxpayer whilst only partially dealing with the inherent litigious nature of compensation.

40. The MDU urges the Committee to lend its weight and influence to proposals to reform the existing system, such as those contained in paragraphs 19 to 24, as we believe these can yield positive results in the short-to-medium term, whilst of course keeping an eye on potential further reforms, in the future.

Closing remarks

41. This is an important and welcome inquiry. The MDU stands ready to support the Committee in its deliberations in any way we can.

42. If the Committee requires any further information from the MDU, or has any additional questions, please do not hesitate to contact me.

Contact

Thomas Reynolds

Head of Governmental & External Relations

Oct 2021