Written evidence submitted by Nathan Bunch (NLR0026)
My name is Nathan Bunch and I am a newly qualified Solicitor specialising in Clinical Negligence at Slater and Gordon Solicitors. I am submitting this evidence in response to the invite for written submissions by the Health and Social Care committee ahead of the inquiry on NHS Litigation Reform as this is an area I feel extremely passionate about working hard on a daily basis to help patients get the justice they deserve.
What is the impact of the current cost of litigation on the financial sustainability of the NHS and the provision of patient care?
I believe that the correct focus should be how litigation helps to hold the NHS accountable in order to help improve the NHS and to assist in learning and improving. The cost of litigation is a fundamental balance and check to help prevent negligent harm to patients. Furthermore the patients in question are taxpayers who are helping to support the NHS. It seems an important part of justice to therefore have a system that ensure accountability and transparency to the public. The actual cost of current litigation has been shown to be reducing based on the NHSR Annual Reports of 2020 and 2021 which would indicate the current cost of litigation is in fact benefiting the sustainability of the NHS in comparison to the past.
If you compare the level of indemnity as a percentage of the overall NHS budget compared to other professional sectors it is actually much lower helping to achieve a fair balance between the cost of litigation whilst ensuring the sustainability of the NHS and provision of patient care.
Finally, the costs of litigation have a direct link to the level of harm and negligence that is taking place. The issue that needs to be tackled if the costs of litigation are said to be excessive is the need for less harm and negligence in the first place which would result in less costs. It is crucial to remember that the legal threshold for pursuing a successful clinical negligence claim is extremely high with a high percentage of claims being investigated but not proceeding to settlement. It is change within the NHS and learning from past mistakes which would benefit their own financial sustainability the most as opposed to litigation that is the overrising cause of indemnity costs.
What are the key changes the Government should consider as part of its review of clinical negligence litigation?
I believe that most important changes must be focused on making improvements to the NHS, training, equipment and facilities. Better and safer care to patients will in turn reduce litigation and the need for change in the first place.
A greater emphasis should be made on learning from past mistakes and obtaining data to help with providing better future care. Patient safety and learning should be at the heart of any change to held reduce patient harm rather than a focus on cutting costs.
I think that the Government should do all it can to ensure that the current legal framework and law of tort within England and Wales is maintained. The legal framework is well established and if this were to be changed in any way it would require a complete review of the entire civil justice system. The current focus is on the wrongdoer paying compensation to put their victim in the same position, so far as money can, but for the negligence. This is a morally just system which should be applauded and supported. Suggested change such as introducing ‘no-fault compensation’ are not achievable without such a wide and complete overhaul of the current framework. Why fix a system that isn’t broke and even more so that is based on such a high moral threshold.
If this were to be change there is also a huge risk that access to justice will be restricted. The payment of damages for those innocent victims that have been injures should under no circumstances be restricted by any change.
Any change would also be costly. Not only would it require a complete review of the current legal framework but it would mean that victims may not get the care and compensation they deserve. This in turn can slow down recovery and create much greater, long term health complications. From a cost perspective this will mean an increase in state benefits and decrease in tax income.
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?
In answer to both of the above questions, there has been a huge increase in collaboration between legal advisers across the clinical negligence landscape. It is becoming much more common to hold things such a global settlement meetings to focus on cases achievable of an early settlement in order to reduce costs. There are also pilot schemes in place to fast-track and streamline less complex cases where liability is deemed to be straightforward. There has been an increase in mediation and ADR. There has also recently been the introduction of the Covid 19 Clinical Negligence Claims Protocol 2019 which is a great demonstration of collaboration. It is very evidence from working within the sector that there has been a shift towards working together in order to achieve an amicable outcome.
To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making? 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?
In answer to both of the above questions, blame culture is not related to clinical negligence claims being made by victims. NHS reports have shown huge amounts of claims by NHS employees as a result of stress and bullying caused by colleagues and the NHS itself due to the way clinicians are treated within the NHS for apparent ‘whistle-blowing’.
It is completely wrong to blame the innocent victims of clinical negligence for creating any type of said ‘blame culture’. If anything, the balance and checks our current legal framework promote create an environment that supports improving medical advice and decision making.
Overall, I hope that my comments are considered and are helpful when discussing any future NHS Litigation reforms.