Written evidence submitted by FOCIS (NLR0042)
FOCIS members act for seriously injured Claimants with complex personal injury and clinical negligence claims, including group actions. The objectives of FOCIS are to:-
See further www.focis.org.uk
Membership of FOCIS is intended to be at the most senior level of the profession, currently standing at 25 members. The only formal requirement for membership of FOCIS is that members should have achieved a pre-eminence in their personal injury field. Eight of the past presidents of APIL are members or Emeritus members of FOCIS. Firms represented by FOCIS members currently include:
Balfour + Manson
Bolt Burdon Kemp
Hodge Jones & Allen
Potter Rees Dolan
Slater and Gordon
FOCIS members act for seriously injured Claimants with complex personal injuries and clinical negligence claims. In line with the remit of our organisation we restrict our responses relating to our members experiences, and to practices and procedures relating to complex injuries claims only. We leave it to others to respond to the impact relating to other classes of case.
NHSR’s annual report for 2020/21 shows that £2.2 billion was spent on clinical negligence claims in the past year, a drop of £114.9 million on the previous year. Claimant’s costs were down to £448.1 million, representing a drop of £49.4 million. In contrast Defendant’s costs went up by £7.9 million.
This group has a fundamental concern that issues of patient safety and the conduct/cost of litigation are being inappropriately conflated.
The consultation seeks to address issues relation to two separate systems with very different aims:
(1) The clinical negligence litigation system which provides redress (compensation) to those who have suffered injury through no fault of their own; and
(2) The NHS healthcare system, which should be providing good quality healthcare and, as part of that, availing itself of all possible learning opportunities.
The first is not designed to improve the second. The first is a system designed to deliver justice and that ultimate aim should not be overlooked by those seeking to reform the litigation system in ways that threaten to limit access to justice.
Whilst there is, of course, overlap between the two systems and our experience is that those injured through NHS care expressly want their experience to be part of a process that leads to improvements in healthcare, it is not the responsibility of injured people to improve the health system that injured them.
Suggesting that the clinical negligence system needs to be reformed to deal with a multitude of problems in the NHS healthcare system is erroneously placing responsibility on the negligently injured people. The responsibility for providing a high quality healthcare system lies with the NHS and ultimately the government and that is where it should remain.
It must be remembered that clinical negligence claims are only successfully brought by patients who have suffered avoidable harm that fell below the standard all patients are entitled to expect, many of whom are left with life changing injuries and significant needs. They should not be forgotten or deprived of much needed compensation because elements of the healthcare system need reform.
We consider the cost of litigation must be treated completely separate from the financial sustainability of the NHS and the provision of patient care. The way this question is framed suggests that patients seriously injured through substandard care ought to be prepared to accept something less than full compensation to ensure that funds remain to provide proper care to others. That is a horribly flawed proposition in an economically strong and advanced society. To take an analogy it is a rather like suggesting that those who qualify for free school meals ought to be willing to accept meals that do not meet their nutritional needs to keep the overall cost of providing education within arbitrarily defined parameters. The financial sustainability of the NHS is a matter of political priority and taxation. Ultimately the answers lie in proper funding of the NHS coupled with a culture of learning from mistakes.
We firmly believe that any social system of the 21st century should facilitate proper compensation (providing recompense for 100% of their consequent losses) for those who have been negligently injured as a result of substandard care. It is trite law that whether care is substandard is evidentially based upon peer review by experts involved in litigation, representing a reasonable body of medical opinion in that particular field of medicine. Most of the experts are themselves NHS clinicians who are well aware of the challenges of providing an acceptable standard of patient care within the NHS. Minority views are acceptable and therefore the bar set to establish substandard care is high. Also adverse incidents that lead to claims in term of the numbers of patients treated are low. There are far more adverse incidents than there are claims.
Further, in percentage terms, the total cost of litigation is modest. The cost of claims administered by the NHSR as a percentage of the overall funding of the NHS attributable to clinical negligence litigation compares favourably with the percentage paid by other professions to commercial insurers operating in the UK.
The most effective way to ensure financial sustainability and provision of care is to avoid causing unnecessary harm in the first place. Cultural change is required with an urgent emphasis on collaboration and clinical governance, implementing improvements in practice should lead to a reduction in the number of claims and costs.
FOCIS members’ experience is that reports are still received of situations where clinicians and managers can be unaware of claims against their teams. The duty to remedy that situation is not within the gift of the litigators, but the managers. This group endorses initiatives such as GIRFT (getting it right first time) and Learning from Litigation Claims. They are important, not only for patient care, but also they ultimately lead to reduction in the number of claims through improvement. This is an important distinction because the alternative represents the erosion of individual's rights to appropriately seek redress when something has gone seriously wrong.
The Cumberledge Report, Ockenden Report, Dr Kirkup’s review of the Life & Death of Elizabeth Dixon demonstrate all too well the absence of learning and continued failure to listen to patients.
This group accepts that problem remains with the maternity services provision across the country (as these claims brought on behalf of seriously disabled infants, whose life long losses will tend to lead to higher levels of compensation). Morecambe Bay, East Kent, Telford and Shrewsbury and more recently, Nottingham (one of the largest maternity units in the country), demonstrate ongoing failures to improve care. This group observes that the ENS (Early Notification Scheme) and HSIB (Health and Safety Investigation Board),within their aims of reducing still births, maternal and neonate mortality and significant harm, in doing more closer to the point of incident is assisting with learning to improve safety. These schemes need more time to bed in and become the universally accepted norm. Reduction in the number of avoidable incidents leading to these very high value claims would have fiscal and, more importantly, patient safety benefits.
The schemes outlined above are in evolution and more time is needed to weigh the benefits.
During this time, the basic concept of common law that the entitlement of injured people to be compensated must not be eroded.
In summary, we believe that it is not appropriate to link those that have suffered injury or who have lost their lives due to a failure in medical care in an NHS hospital to the sustainability of the NHS and the provision of patient care. The current cost of litigation administered by the NHSR is a symptom of the failures to learn from past mistakes and failure to adequately fund the NHS in a way that makes such mistakes far less likely. If there is a genuine desire to mitigate the costs (that this group would argue is proportionate when compared with other sectors) then the issue of avoiding adverse incidents must be placed at the centre of current and future strategy. As identified by the 2018 British Medical Association (BMA) survey (see further in answer to Q3 below) system pressures relating to proper funding of the NHS is the issue identified by the greatest proportion (93%) its 8,000 members as having a negative impact on their ability to deliver safe patient care.
It seems illogical to link the "way compensation is awarded” with the promotion of patient learning. Not least because the number of claims represents only a tiny proportion of the adverse incidents within the NHS; near misses will be as helpful to inform as actual claims. Proper scrutiny of all adverse events will reduce harm and therefore the number of claims. Put another way, promotion of learning in and of itself will reduce the need for compensation.
Whilst all patients injured would like lessons to be learned there should be separate systems within the NHS to promote learning and improve patient safety that are not solely reliant on injured patients who have resorted to litigation.
Therefore, it is absolutely accepted that patient learning needs to be embedded as part of the post adverse event process, and, if done effectively would reduce the number of compensation claims.
The system needs to be adapted in a way that incentivises learning. The best way to deal with an adverse outcome is by inspection. Initiatives such as NHS England and NHS improvement's "Patient Safety Incident Response Framework 2020" should be encouraged and allowed to mature.
The opportunity to "promote" learning has always been there but not necessarily embraced by the NHS. Twenty 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 identifying and remedying the causes. The report rightly identified that litigation is a rich source of data from which the NHS should learn.
In July 2000, the government published the NHS plan: a plan for investment, a plan for reform (CM 4818); a plan that committed the NHS to a 10 year process of investment and reform.
In June 2003, the Chief Medical Officer’s further recommendations were published in the document “Making Amends’’. That document made 19 recommendations. The NHS Redress Scheme under the NHS Redress Act 2006 facilitated as primary legislation, remedial treatment, rehabilitation and most importantly explanations and apologies. The Act provided for the establishment of such a scheme as a realistic alternative to settling lower value clinical negligence cases without resort to the civil courts. No secondary legislation in England has been passed to support the scheme mechanism and implementation.
More recently, the Care Quality Commission published two separate reports pointing to the failure of the NHS investigation system to identify causes for accidents and in 2017 the National Audit Office was critical of the failure of the NHS to use data gathered from claims.
The Duty of Candour to patients when things go wrong is, in our experience, not being adopted universally in the NHS.
It is unknown to our members practising in clinical negligence whether the payment of compensation and the finding or acceptance of negligence on behalf of a Trust hospital or its clinical staff leads to any internal training, review or investigation within such Trust. Only rarely does a Public Enquiry lead to findings of systemic failure.
We believe that the learning from mistakes should emanate from within the hospital environment with a change of culture and acceptance of responsibility when things go wrong.
To Summarise: Whilst clinical negligence claims can help to highlight patient safety issues and encourage learning from failings that is not its purpose. The purpose of compensation is to attempt to restore the seriously injured Claimant to the position they would have been in had they been treated appropriately. Clinical negligence litigation often results from past NHS failures to learn from past adverse events, it does not cause a failure to learn.
Learning from past events ought to positively influence the NHS healthcare system. However, as referred to above it does not follow that should also result in changes to the legal system. Any correlation between learning from past incidents and the compensation awards for each individual who in the future is injured by substandard care is not a logical one.
It follows that we do not consider there are any key changes the government should consider as part of its review of clinical negligence litigation other than:-
The principle of a 100% compensation was eroded as a result of the Jackson reforms under the Legal Aid Sentencing and Punishment of Offenders Act 2013 removing the recoverability of the success fee from the responsible defendant and forcing the same to be taken from the injured person’s properly calculated compensation. It is crucial that there is no further erosion of the full compensation principle.
Lower value cases have been the subject of previous recent consultation and report. Hence we do not comment here in relation to such low value claims
Higher value cases are, by the nature, more complicated by reason of what is required to be proven and where the burden of that proof rests more complicated. They do not lend themselves to simplification for simplifications sake. There is an innate inequality at the outset because the bulk of the information is with the healthcare provider. This will always mean that injured party has to pull together documentation and expert evidence to support that case. This is a time-consuming process.
Internal investigations soon after the recognition of an adverse event coupled with the duty of candour and explanations provided to patients does assist to identify the issues, assist patient understanding and accelerate redress. Such early notification and evaluation of immediate compensatory need with appropriate legal advice is and would always be welcome.
We reiterate our point that alternative dispute resolution mechanisms play a part in this or as part of subsequent evaluation and investigation of the claim either parallel to civil court proceedings where appropriate or as an alternative to them subject to appropriate modifications to the law on Limitation being safeguarded. (NHS Redress Act 2006 refers.)
Therefore, this group would argue that there have been good developments in terms of early discussions between experience lawyers that have reduced the timescales.
Nonetheless the group also reports that "deny, defend, delay" tactics are still used too often and this unnecessarily escalates costs.
The "wish list" that the group believes would lead to simplification and acceleration includes:
We recognise and support the continued use of the clinical negligence pre-action protocol for the resolution of disputes.
There is an increasing use of NHSR promoted mediations, party to party joint settlement meetings or roundtable meetings to either narrow issues or to achieve settlement without lengthy court process. The contractual arrangements reached by the NHSR with mediation organisations such as Trust Mediation and CEDR has shown an increase in the use of this ADR mechanism and this is likely to continue and to increase. We support this.
Solicitors conducting the majority of high value claims work are either specialist solicitors recognised and accredited by appropriate organisations or panel solicitors contractually engaged by the NHSR or other indemnifying organisations. There is generally a close working relationship with the majority of practitioners in this field. Where possible there is a desire to reach early and satisfactory resolution without the need for a trial. Statistically less than 1% of clinical negligence cases are determined at trial. This figure has not changed for many, many years and is illustrative in reality of an existing collaboration picture. However, earlier admissions and settlements in the 99% of proven cases that settle are a valid aim and would reduce claim costs.
As far as we are aware statistical information in relation to the success or otherwise of the early notification scheme is not readily available. Anecdotally, early notification scheme notifications are sparse. For the adoption of a true early notification scheme to be of merit will need more resource and adoption of the suggestions made in answer to the preceding paragraphs on learning, openness duty of candour and desire for early resolution.
Experience of our members is that it does not appear that families affected are universally being advised to seek independent advice on the process or their choices. The group observes that although it is in the best interests of patients to receive notification of an adverse incident it is not in their best interest to only receive advice from the institution which has potentially caused the harm.
The absence of transparency and a working process of recommendation to seek independent advice upon the scheme undermines confidence in the scheme.
The group agree that the early notification scheme is still bedding in and whilst there are examples of it working well, it is too early to tell whether it should be expanded.
Therefore, focus should be on making the existing scheme work as the majority of costs stem from the high value obstetric claims. Only once the system is acknowledged to be working well by all parties involved in these cases should it be extended. There were concerns expressed by some of our members about how the system currently operates with examples of families not told that an investigation is happening, or reports that they are not as involved as they should be. Given the importance to patients of transparency and candour, this is a serious failing which needs to be addressed.
To summarise: Focus should be on making existing early notification scheme work, not least, because the majority of litigation costs stem from the high value obstetric claims which should be caught by the scheme. Only once the scheme is shown to be effective, with a good body of data supporting the proposition, should it be expanded.
The issue of fixed costs in clinical negligence cases has been consulted on a number of times before. Most recently, in 2017 the Department of Health opened a consultation on proposals to impose ‘fixed recoverable costs’. The CJC put forward recommendations only in 2019. As far as we are aware, the government has not responded to or acted on those recommendations.
Members of FOCIS are not generally involved in low value claims although one of its members was a significant contributor to the consultation paper presently being considered and recently supplied to the Department of Health. The pros and cons of such a fixed cost scheme have been rehearsed in that response to the consultation. It seems to us that the nature of the tort system, which we fully support, does not lend itself in terms of burden of proof, standard of proof and funding mechanisms to a low fixed cost scheme for those sorts of cases.
The group notes that although the defendant’s solicitor's costs have increased, the NHSR annual reports over the course of the last few years have shown a reduction in cases and a reduction in claimant’s costs.
We are not aware of any evidence that the adversarial nature of the current clinical negligence system creates a “blame culture”. Clearly, this myth should not affect medical advice and decision-making in any clinical setting.
It is of note in the 2021 NHSR report they also found no evidence of such a ‘blame culture’.
We think it important to differentiate between (a) accountability and taking responsibility for avoidable failures and (b) ‘blame’. Only the first is necessary to ensure lessons are learnt and patient safety improved.
We see little evidence that the adversarial nature of the current clinical negligence system creates any ‘blame culture’.
Anecdotal evidence suggests that that blame culture, insofar as it exists at all, comes from within the NHS and exists whether or not a clinical negligence claim is being pursued. The culture is due to environmental issues amongst the staff and poor management in Trusts.
In some Trusts there appears to be little encouragement to acknowledge mistakes and no effective mechanism for staff to raise concerns. Nor are there appropriate reporting structures for those concerns to be escalated and acted upon with protection for whistle-blowers.
This has led to well reported incidences of toxic cultures and failing departments – Mid Staffs, Morecombe Bay, Shrewsbury & Telford and East Kent - The problems in those Trusts were all identified as ones of internal culture.
In 2018, the British Medical Association (BMA) surveyed 8,000 members about what impacted on their working lives and the findings were:
The key findings from that BMA survey were:-
- A majority (78%) of doctors say that NHS resources are inadequate and that this significantly affects the quality and safety of patient services.
- Most doctors say that patient services have worsened, including waiting times for patients (76%) and staffing levels (74%).
- Around three-quarters of doctors say that national targets and directives are prioritised over the quality of care.
- Nearly half of doctors (45%) are often fearful of making a medical error in their daily workplace and over half (55%) say they are more fearful than they were five years ago.
- Nine out of ten doctors (89%) say one of the main reasons for making errors is pressure or lack of capacity in the workplace.
- Over half of doctors (55%) worry they will be unfairly blamed for errors that are due to system failings and pressures; as a result, half of doctors practise defensively (49%).
- The majority of doctors (93%) say that system pressures have a negative impact on their ability to deliver safe patient care.
- GPs were more likely to identify being pressured to attend to multiple tasks, lack of time with patients and fatigue from working long hours as factors affecting their ability to provide safe care, with hospital doctors more likely to highlight lack of doctors, support staff and beds.
- Three-quarters of doctors are cautious about recording reflections for fear it could be used against them; with junior doctors expressing particular concern.
- Half of doctors (49%) said they do not have the time to learn and develop professionally in their role.
- Two-fifths of doctors said that bullying, harassment and undermining is often or sometimes a problem in their main place of work.
- Only 55% of BAME doctors said there was respect for diversity and a culture of inclusion in their workplace compared to 75% of white doctors.
- In England, just 9% of doctors say CQC inspections take into account system pressures, with 71% saying that these inspections add to fear and worry amongst staff.
We would suggest that there are pressing issues identified here that if tacked would significantly enhance patient safety and improve culture with the knock on effect of reducing adverse incidents and therefore compensatable harm.
These issues have been flagged by many investigations into patient safety (and patient safety failings) in the NHS:
We would suggest that the recommendations made in these inquiries/reports should be the focus of any reform. The view of this group is that the “blame culture" as a result of litigation is not something that affects medical advice and decision-making. This is in contrast to internal cultural issues, by way of example the CQC's recent finding in Nottingham relating to ongoing problems with bullying in the Maternity Service.
FOCIS would welcome better support for frontline staff involved in adverse incident investigations in order to remedy any perception of a blame culture within the NHS. We contend that if the NHS were to investigate adverse events/incidents from a genuine position of learning and accountability, rather than with a view to defending any claim that will then safety will improve.
One suggestion from the group is that, in addition to working with their own legal advisors, NHSR should perhaps widen the net to consult with claimant organisations/legal representatives in a more meaningful way e.g. with appointments to Trust Boards to ensure greater consistency
To summarise: We repeat our responses above. The clinical negligence system itself cannot and does not control medical advice and decision making, nor is it able to ensure lesson learning and commitment to change without the input of those in charge of such systems (being NHS, NHSR or other indemnity providers for private healthcare systems). If there is a blame culture within the NHS then that is of its own making and within its control. It is not caused by patients who as a consequence of substandard care are seriously injured and are consequently entitled to compensation. It should be appreciated that our compensation is restitutionary and does not involve punitive damages nor any scope for financial gain by claimants.
The duty of candour, the need for transparency, openness and early notification when things have gone wrong are paramount to building confidence in the system as a whole. For separate reasons of justice it is also crucial to preserve the necessary mechanisms (whether in the form of alternative dispute resolution mechanisms or the civil courts) to provide compensation to put injured people in the position that they would have been in had the substandard care and resulting injury not occurred.
The purpose of a clinical negligence claim is to deliver an award of damages to recompense somebody who has suffered injury as a result of a failure in the standard of care. It is directly analogous to the payment of damages in a road traffic accident. The fact remains, however, that where good learning is in place, the incidence of future clinical negligence is likely to reduce. The group agree that, almost without exception, clients say that they want to ensure that what happened to them or their loved one does not happen to anyone else.
There are and should be, other systems to encourage learning and change and where appropriate data gathered from clinical negligence litigation should inform that learning in a way that is very transparent to the injured party. The corollary of this is that FOCIS is not in favour of "safe spaces" that preclude any parties or their representatives from involvement in the investigation process and its resultant conclusions.
We repeat that we do not consider there is a blame culture, save perhaps within the healthcare systems themselves. There is no need to change the way in which clinical negligence claims are conducted to achieve a learning culture within the NHS. The need to change and the acceptance of the need to change is entirely within those NHS organisations.
There is much that Trusts can do to promote learning and a commitment to change, such as:
Summary: The perception of a "blame culture” within the NHS is a construct that masks the true issue: that there needs to be a streamlined and dedicated drive to ensuring that every time there is an adverse incident (regardless of whether it results in a negligence claim) it should be scrutinised and any data collected from the incident should then be centralised to ensure appropriate learning nationwide.
In part this question is misconceived; people do not pursue nor are they forced to pursue, litigation as a means of obtaining non-financial remedies. Litigation is not designed to provide non-financial remedies. Those pursuing non-financial remedies are often reliant on the NHS complaints and investigation systems or the inquest system. If the government wishes to reduce the number of people using litigation when it is perceived their primary aim is a non-financial remedy they should focus upon these areas.
People pursue claims when they feel they have been wronged and/or need compensation to provide for their injury related losses. Also, it should be remembered that the majority choose not to pursue claims even having suffered injury as a result of clinical negligence. It is true that some Claimants are also seeking information as referred to in the question but the experience of the FOCIS members is that is almost always in tandem with seeking appropriate monetary recompense to try and put themselves in a position that they would have been in had the negligence not occurred. In the very rare exceptions to that rule transparency, honesty, compassion for injured patients is key. Taking legal action should never be required as a means of simply getting answers.
The experience of FOCIS members is that the work of the Healthcare Safety Investigation Branch (HSIB) has been positive. However there is anecdotal evidence that referral by Trust hospitals has been a substitute for their own internal investigation when things have been recognised to go wrong. It is apparent that in many cases HSIB involve parents early in investigations and that is to be welcomed and encouraged.
The speed at which subsequent internal investigations are carried out and information relating to outcomes provided to the patients or families is less acceptable and better mechanisms to achieve comprehensible and early reporting to patients and families should be considered.
There will be, of course, an additional resource issue should the work of the HSIB be expanded.
The current tort system has been carefully developed and refined over centuries. It is well established, based on fair principles, and should not be changed.
We suggest that any no-fault compensation system is unaffordable and unmanageable. In 2005 when considering the potential effect of the NHS Redress Act on low-value compensation claims due to fall within the scheme, government economists estimated that, in year one, there would be a possible projected increase in cost of approximately £48 million. By year 10, the same modelling forecasts projected increases of £80 million.
This was against a backdrop then of NHS clinical negligence claims standing at £500 million and NHS funding in the same year of £70 billion. It was suggested that the administration of the scheme would cost somewhere between £4.2 and £11.2 million extra per annum. The scheme only covered secondary providers. If primary services were to be included (as per the NHS GP indemnity schemes introduced recently,) then the increase forecast in 2005 was an estimated additional cost of £56 million per year.
This comes at a time when the vast majority of cost to the NHS in litigation claims (65%) arise from obstetric claims and where the Royal College of midwives has recently warned of a ’midwife exodus' as professionals feel unable to deliver safe care to women.
Any change of the system would result in inadequate compensation, or of loss of confidence from the public in terms of transparency and efficiency, and would undermine core principles of civilised society including access to justice and full compensation.
FOCIS also predicts that this would ultimately lead to unintended consequences including increased reliance on state services, social care funding and potential reduction in revenue for those unable to return to work or be reliant on other members of the family prevented from work due to care and support responsibilities.
If there were a proper investigation and drive for early neutral evaluation by way of alternative dispute resolution then the costs of the current clinical negligence system could be materially reduced without any new legislation.
The introduction of the duty of candour increased use of incident reporting, genuine desire by many Defendant specialist lawyers to grapple with issues early has led to an acceleration of settlements and a saving in Claimant's costs and the NHSR figures reflect that. The environment for claims resolution is already changing and will continue to change in a positive way if these trends continue.
FOCIS is of the view that further time should be allowed for current changes to continue to filter through the system.
Clinical negligence legal costs are a symptom of a failure to learn from past mistakes, not a diagnosis in themselves. If appropriately supported early investigation and learning is made a genuine end goal in adverse incident investigation, and related learning is disseminated effectively, the number, timescale and cost of claims will reduce. Also patient safety will be improved with a corresponding enhancement of trust in the system. The cultural shift can and should be achieved without diminishing citizens’ rights.