Written evidence submitted by the British Medical Association (BMA) (NLR0040)

Dear Mr Hunt,

RE. Health and Social Care Committee NHS Litigation Reform Inquiry 

The BMA is a professional association and trade union representing and negotiating on behalf of all doctors and medical students in the UK. It is a leading voice advocating for outstanding health care and a healthy population. It is an association providing members with excellent individual services and support throughout their lives.

I write to submit the British Medical Association’s (BMA) views on NHS litigation reform to you, in your role as Chair of the Health and Social Care Committee. I hope that this letter will help to inform the inquiry which you are currently undertaking.

The BMA firmly believes that patients who suffer harm through negligence on the part of a clinician should have recourse to compensation. We want to encourage a safe environment for patients with less emphasis on litigation and more focus on shared responsibility for safe healthcare culture, outcomes, and delivery. The current cost of NHS litigation is staggeringly high, with the most recent assessment of annual cost of harm arising from clinical activity during 2020/21 calculated at £7.9 billion, although this is down from £8.3 billion for 2019/20. The provision for the liabilities arising from clinical negligence claims is £82.8 billion.[1]

The pressure from the cost of clinical negligence is also felt in the private sector and by those clinicians responsible for funding their own indemnity. These unsustainable costs will continue to rise in the absence of legal reform and changes to the incentive structure for law firms to advance unmeritorious cases. It is crucial that the Government sets out a coherent strategy to tackle the rise in clinical negligence costs, while ensuring fair, proportionate, and affordable redress for affected patients. A fairer and more affordable clinical negligence system will encourage more candour as the current overwhelming ‘culture of blame’ discourages candour and learning.

The BMA recognises that this is a significant cost to the public purse. While we do not dispute the awarding of compensation, the scale of the current costs is an extremely heavy burden at a time when the NHS is struggling with increased demand for services as a result of both the pandemic and historic underfunding. We welcome this inquiry into NHS litigation reform, and hope that recommendations can be made which will strike the right balance between ensuring patients who experience an instance resulting in harm will receive the care they need, while reducing litigation costs, and also supporting a culture shift from one of blame to learning, in order to reduce, where possible, future instances of harm occurring.

We also have significant concerns that as a direct result of the pandemic and the subsequent need to reduce, and in some cases pause, routine procedures and investigations, we are likely to see an increase in litigation costs over the coming months and years. This is likely to continue as we face the largest backlog of care in recent history.

There are some areas in which we believe that savings can be made in, while still ensuring appropriate care provision for those patients who have been impacted. These are:

• a Repeal of S2(4) of the Law Reform (Personal Injuries) Act 1948; and
• the establishment of an independent body to define the NHS health and social care package which can give an appropriate standard of care for all patients irrespective of the cause of the patient's care requirements.

We believe that these approaches will reduce care costs while not reducing the care package made available to the patient. This is because S2(4) of the Law Reform (Personal Injuries) Act 1948 dictates that personal injury defendants must disregard NHS care when awarding compensation, meaning that public bodies like NHS Resolution have to fund private care shifting billions of pounds from NHS funding to the independent sector. We believe S2(4) should be repealed to enable organisations such as medical defence organisations and other personal injury defendants, including employers, insurers and public bodies, to be able to buy NHS and local authority care packages. This approach would ensure those who experienced harm are appropriately cared for while simultaneously keeping the costs within the NHS for the benefit of all patients, including the great majority of patients who require long-term care and treatment for severe injury which is not a result of negligence.

We believe that these measures, coupled with a genuine drive to move from a blame to learning culture, will result in improved service and reduced litigation costs.

Yours sincerely,

Dr Jan Wise MSc, FRCPsych IDFAPA

Chair, BMA Medico Legal committee

Oct 2021