Written evidence submitted by The Independent Healthcare Providers Network (IHPN) (NLR0044)

The Independent Healthcare Providers Network (IHPN) represents independent healthcare providers of both NHS and privately funded clinical services, from acute, diagnostic, clinical home healthcare, primary and community services.

In addition to their private insurances and indemnities, many of IHPN’s member organisations are members of the Clinical Negligence Scheme for Trusts (CNST) for the purposes of activity carried out on behalf of the NHS. Alongside their private work, independent providers currently deliver approximately 7% of all NHS elective activity, and are working closely with NHSE as part of the elective recovery programme over the period of the next Spending Review. This response considers both the wider subject of NHS litigation reform, and, where relevant, how any reforms may impact on the independent sector.

1. It is clear that current levels of compensation claims are unsustainable, with more than £2bn paid out in clinical negligence claims and legal costs in 2020/21, and more than £80bn now set aside for future claims. Income into clinical negligence schemes from its members in 20/21 rose by almost £300m compared with 19/20, and funding from DHSC for the schemes stands at more than £400m. Legal costs made up more than a quarter of total payments from the schemes.

2. Like all contributors to the CNST scheme, our members have seen costs consistently increase over recent years.

3. The current approach to litigation within the health system unfortunately can mean that the compensation process creates a barrier to learning. Any reforms need to focus on developing a system that is dually focused, not only on getting fair recompense to patients – avoiding litigation where possible – but also on minimising future harm by encouraging the timely learning of lessons from all patient safety incidents.

4. The independent sector is taking a proactive approach towards building a culture of learning and openness with regards to patient safety. One strand of this work is the Medical Practitioners Assurance Framework (MPAF) for the independent sector, produced for IHPN by an expert steering group made up of sector representatives and led by Sir Bruce Keogh, the former NHS England Medical Director. It covers best practice on monitoring patient safety, encouraging continuous improvement and on raising and responding to concerns about practitioners. To operate within the framework, providers must be able to demonstrate how their processes meet the expectations of the MPAF. In doing so, the sector is encouraged to share best practice and promote innovation in patient safety.

5. It is our view that, though genuine clinical negligence must be held accountable, a prevailing blame culture is not necessarily conducive to improving patient safety. There should, however, be a presumption that, whenever a patient safety incident has occurred a resolution is required – whether negligence has occurred or not. As such, the sector would be keen to work with authorities in building a robust early resolution process that includes learning and prevention at its core.

6. We believe expanding the roll out of the Early Notification Scheme (ENS), currently in place for maternity incidents, to more specialties is an option that warrants further consultation.

7. Though there may be practical considerations in terms of implementation of an Early Notification Scheme that works across different specialties, we recognise that the core principles of the scheme have already been demonstrated. The ENS (or a similar process) could be a route to instigate the type of culture change that is being sought – by requiring early notification of potential claims incidents, providers would be encouraged to proactively seek to resolve the incident, empower affected patients, and improve the likelihood of sharing learning more rapidly. While in some cases litigation will continue to be brought, this approach should mean that learning from incidents will, over time, come to precede that litigation, rather than be reliant on its outcome.

Oct 2021