Written evidence submitted by Boyes Turner LLP (NLR0030)
We are a firm of solicitors with over 30 years’ experience of claimant clinical negligence claims and with specialist expertise in birth injury claims arising from failings in maternity care. We understand why patients make claims and what would need to be done to reduce the need to litigate.
WHAT IS THE IMPACT OF THE CURRENT COST OF LITIGATION ON THE FINANCIAL SUSTAINABILITY OF THE NHS AND THE PROVISION OF PATIENT CARE
There needs to be a clear distinction between legal costs (which lawyers call costs but the government is using as an interchangeable definition which includes compensation and confuses the media/public) and compensation which is the money that the patient receives, and is entitled to, as a result of their negligently caused injury.
The cost of compensation to the NHS, particularly from catastrophic harm, will only be reduced by raising standards of care and reducing the harm. The NHS’ ability to learn is not related to whether the compensatory value of legal claims are high or low, but to cultural problems which have existed for decades, chronic lack of funding (over decades), staff and resources, and de-skilling from experienced practitioners leaving the profession. There are ample reports and inquiries which highlight where and why errors occur, but the NHS has not listened/learned nor been able to implement the suggested improvements. The amount of compensation that is paid out to injured patients is not causative or directly related to these problems. The negligent care, and the harm, and its true causes will not disappear simply by reducing compensation to injured victims. It is the current level of harm that is unsustainable – the result (not the cause) of poor patient care.
The media and the public should not be misled into an assumption that compensation is reducing the quality of patient care and that money ‘saved’ by reducing compensation payments will be ringfenced by the government and used to improve patient care. This is not true – the NHS’s problems are partly the result of government policy leading to chronic lack of financial resourcing. Spending on improving standards of care within the NHS must come first. Patient care must improve first, particularly in maternity care, before compensation claims will reduce as a result of falling incidents of negligent harm.
The NHS isn’t alone in having to compensate those that have been injured as a result of mistakes. Other defendants and their insurers compensate the injuries they cause on the same legal basis. If the NHS struggles to afford these claims it is because they cause more severe and life changing injury. Given the extent of harm caused by the NHS, is adequate funding allocated to the risk of running the NHS, as compared to other organisations allocation of funding for professional indemnity insurance?
Government agencies or organisations should not be exempt from providing full legal redress for their negligence. There cannot be a two-tier system resulting in individual patients, who have been severely injured, losing their entitlement to compensation. Victims of NHS negligence, however serious and life-changing their injury, should have the same legal right to compensation as others who suffer injury.
WHAT ARE THE KEY CHANGES THE GOVERNMENT SHOULD CONSIDER AS PART OF ITS REVIEW OF CLINICAL NEGLIGENCE LITIGATION
The Government needs to consider why patients bring claims in the first place. They have been seriously harmed and have been left with disability which makes many aspects of life extremely challenging and unmanageable without significant help and additional cost.
Often, they need funds to access to care, therapy, equipment and adapted accommodation that they can’t afford or obtain elsewhere. Existing social care and local authority provision is unable to meet the needs of injured patients. It can’t even meet the needs of those who haven’t been harmed by the NHS.
If the Government wants to reduce the numbers of injured families who have no alternative way of meeting their child’s or their own extensive needs, other than to turn to litigation, then it needs to provide an alternative source of funding for the needs of injured patients. The needs will not simply go away.
In addition, they need to ensure that the NHS provides patients with early, honest explanations of what has happened and apologise. Early mediation meetings might result in redress which satisfies the patient in cases where the severity of the injury doesn’t result in significant ongoing financial needs.
The Government should invest urgently in substantial improvements, including resourcing, to NHS services from which the highest awards of compensation are made, to reduce the incidence of mistake and catastrophic injury.
Suggested innovative solutions for (legally represented and properly informed) claimants could be achieved via mediated early agreements, such as:
WHAT CHANGES SHOULD BE MADE TO THE WAY COMPENSATION IS AWARDED TO PROMOTE LEARNING AND PREVENT PROBLEMS BEING REPEATED
This is the whole point and where it’s all going wrong – stop linking learning to compensation and start linking it to improving standards of care based on the mistakes that can cause the harm. A small mistake can lead to catastrophic harm (just a few minutes of delay in childbirth) but the same mistake won’t necessarily result in the same compensation for each patient. Compensation is based on the patient’s injury/disability/circumstances/need. The NHS needs to focus on reducing harm by improving standards of care – that’s a medical/professional and to some extent NHS management/resourcing/training issue relating to improving competence, teamwork and all that’s necessary to support it (there have been countless reports on the subject including EBC, GIRFT and HSIB which take compensation out of the equation and focus on the true cause). Compensation is a separate, legal/financial issue.
Once liability/avoidable harm is established, the compensation should be dealt with according to claimant’s need, and the learning take place via different system. It’s again down to culture/resourcing/commitment to learning. Adopting the approach that nothing can be changed until compensation is reduced will never work.
HOW CAN CLINICAL NEGLIGENCE PROCESSES BE SIMPLIFIED SO THAT PATIENTS CAN RECEIVE REDRESS MORE QUICKLY
Rather than multiple investigations of the same incident in the form of an SUI, an expert investigation by the claimant and an expert assessment by the defendant, there should be one review of the case by independent medical experts, assessing the case on the basis of improving patient safety and avoiding future harm.
Where care is found to be below standard/avoidable harm has been suffered, then that should be followed by immediate confirmation that the NHS accepts liability, the claimant/family being encouraged (if they haven’t already done so) to seek specialist independent legal advice, so that arrangements can be made for an immediate interim payment (based at least in part on the claimant’s current and short-term needs) and the case to proceed to quantification/settlement as soon as the claimant’s prognosis and long-term needs can be accurately assessed.
Claimants in catastrophic injury cases must have independent advice from specialist clinical negligence solicitors who are skilled and experienced and accredited in handling these types of claims. This ensures they are correctly advised but also ensures interim funds are properly managed and used for the claimant’s needs, priorities are addressed properly, deputies appointed, and the correct evidence gathered to ensure final settlement can be made on sound evidence. It should also facilitate communication and collaboration with NHS R.
The integrity, success and credibility of the system will only be as good as the independence and integrity of the review panel and their legal/NHS advisors and the transparency of the information used in the process. The focus would need to be on looking for cases which can be shortcut to provide early compensation with less time spent in legal (liability proving) process, rather than on avoiding or reducing claims. Historically, NHS Resolution is over defensive, particularly about causation, with approx. 50% of claims which we see where NHS Resolution has denied causation ultimately result in settlement for the client.
Patients must receive a response within a guaranteed (short) timescale so that they can still seek independent legal advice and claim interim funds through normal channels if necessary. So, the panel assessment would be a preliminary means of achieving a swift outcome by pre-empting the need for each party to obtain their own experts’ reports, but not necessarily a final adjudication.
In PI cases, the Rehabilitation Code/Serious Injury Guide has been successful in encouraging most insurers to provide rehab funding for injured victims long before the case is resolved. A similar code of conduct for NHS claims should be considered, for the primary purpose of speeding up help for the injured patient.
HOW CAN COLLABORATION BETWEEN LEGAL ADVISORS BE STRENGTHENED TO ENCOURAGE EARLY AND CONSTRUCTIVE ENGAGEMENT BETWEEN PARTIES
Parties’ legal advisors should be encouraged to meet early to focus on the key issues, if necessary by mandatory mediation. The sooner the defendant’s representatives are willing to take a collaborative approach with the claimant’s lawyers and work towards providing redress for the injured claimant, or narrowing issues if liability is disputed, the sooner the case can be resolved.
WHAT ROLE COULD AN EXPANDED EARLY NOTIFICATION SCHEME PLAY IN IMPROVING TRANSPARENCY AND EFFICIENCY SYSTEM WIDE
To date, ENS has done very little to increase transparency or early access to funding for brain-injured babies and their families. We have not seen any evidence of increased transparency and only a very small number of families have received interim payments and even then, of a lower amount than we routinely obtain from NHS Resolution for our brain-injured baby clients.
If anything, ENS appears to have been more focussed on collecting data and getting a head start on gathering the family’s perceptions of their experiences for potential future use, rather than providing open, honest information to help them. It is also far from clear what NHS Resolution is advising families during ENS about seeking independent specialist legal advice – as has been highlighted by APIL. Further, the ENS scheme appears now to have stopped making any financial payments to families and further delay has been built into the system by awaiting the result of HSIB’s investigation before taking any further action. This casts doubt on whether the primary purpose of ENS was ever to bring about earlier financial redress for victims of maternity care negligence. The number and speed of admissions of liability certainly does not appear to have increased.
Constant talk of transparency without corresponding action or evidence of it in practise only serves to increase distrust. Current moves, including proposed HSSIB maternity investigations under ‘safe space’ and removing accessibility of GIRFT reports from the public, are all reducing transparency for those who are affected by substandard care from the NHS.
A system which valued transparency would use the information they receive from early reporting of Each Baby Counts HIE cases and other severe avoidable injuries to actively seek out families who have suffered avoidable harm and prioritise giving them help. It would encourage early collaboration with specialist claimant lawyers to discuss ways in which the patient can be helped practically and financially, reducing the need for formal litigation processes where possible.
FIXED RECOVERABLE COSTS
Fixed recoverable costs levels should be set according to the complexity of the claim, such as how many experts (from different specialisms) are required to resolve a claim, rather than simply the value of the claim.
TO WHAT EXTENT DOES THE ADVERSARIAL NATURE OF THE CURRENT CLINICAL NEGLIGENCE SYSTEM CREATE A BLAME CULTURE WHICH AFFECTS MEDICAL ADVICE AND DECISION MAKING
The co-called ‘blame culture’ has existed within the NHS for decades, as evidenced by problems highlighted in many reports. Injured claimants have been scapegoated as the origin of the blame, as the government has increasingly come to realise that the NHS will not meet its targets for reducing harm from poor maternity care and is incapable of taking responsibility for, and learning from its mistakes.
The blame culture within the NHS has more to do with how staff are supported and trained and the consequences of mistakes on their careers within the NHS, than any external consequences after a mistake has occurred. NHS trusts’ management has repeatedly been found by CQC and countless inquiries to be dysfunctional, perpetuating the problems where, for example, junior staff cannot seek help or escalate concerns, and are then blamed (by the system within which they work) when they make mistakes. The culture and working environment within the NHS will not change simply by reducing compensation payments for those who are injured or changes to the clinical negligence claims process.
The civil law recognises that people make mistakes (in all positions of responsibility in life) that those who are harmed as a result of those mistakes should receive financial compensation. It focusses on compensating the victim and does not punish the individual who made the mistake. Any consequences that are suffered by the negligent practitioner arise solely from within the NHS. The clinical negligence system currently requires claimants to prove negligence in order to be eligible for compensation after they have suffered serious injury. The alternative, based on whether the injury was avoidable, rather than negligent and impliedly blameworthy, will not reduce the NHS workplace consequences for the individual who made the mistake, but is likely to increase the number of claimants who have suffered harm from, but not chosen to litigate against, the NHS.
In addressing its blame culture, the NHS currently fails to recognise that all human beings make mistakes, and when they do they need to be supported, trained and to learn from them. This should not affect the injured patient’s right to redress.
HOW IMPORTANT IS IT THAT ANY CLINICAL NEGLIGENCE SYSTEM ENCOURAGES LESSON LEARNING AND COMMITMENT TO CHANGE AS A RESULT OF ANY ACTION
It is imperative.
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
Clinical negligence claims are not the cause of the blame culture which has existed for decades within the NHS – as explained above. This needs to be understood, and culture addressed from a different perspective before change can be made. No amount of reducing compensation or changes to the civil litigation system will result in changes to the culture within the NHS. The only way that clinical negligence claims will reduce in number is by improving the standard of care that is consistently given to patients. Standards of care will not increase simply because patients no longer have the right to bring claims or seek redress.
Countless reports and inquiries (including Each Baby Counts, GIRFT, Morecambe Bay, Ockenden and HSIB) have provided insight into the cause of cultural problems within the NHS. This comes from systemic failures, such as poor management, lack of training, poor teamwork, insufficient staffing levels, inability to escalate concerns and lack of support for junior staff.
The government and the NHS need to accept the scale of the problem within the NHS and work to address that, acting on the repeated recommendations for change within the system, rather than assuming that the problem will be solved by eroding injured patients’ rights to redress.
HOW CAN HSIB WORK TO IMPROVE SHORT TERM RESPONSES TO PATIENT SAFETY INCIDENCES AND REDUCE THE NUMBER FORCED TO PURSUE LITIGATION
HSIB must speed up investigations to provide early explanations both to patients and the NHS, so the NHS can implement the changes needed to avoid future harm and the patient understands early on what happened and receives an apology. HSIB’s current mandate is to not apportion liability, so where mistakes have led to harm, the only honest and transparent thing it can do is to advise the injured patient/family to seek independent specialist legal advice and recommend to NHS Resolution that there are good grounds for a claim and that time and money will be saved by making an urgent admission of liability. It is then for NHS Resolution to act on that recommendation quickly by collaborating with the patient’s solicitor to ensure that the patient’s needs are met with an immediate interim payment.
Delays, lack of openness and transparency, and defensiveness all increase the likelihood that the patient/family will need to want to enforce their rights via litigation.