Written evidence submitted by Weightmans LLP (NLR0064)
NHS Resolution has reported a reduction in its provision in respect of clinical negligence claims from £84.1 billion to £82.8 billion and observes a lower than expected number of incoming claims and reduced claims inflation. Nonetheless the NHS is continuing to incur around £8 billion annually for the cost of clinical negligence, of which maternity claims make up 65% of the NHS Resolution provisions for claims.
Our analysis of Trusts’ contributions to CNST relative to their annual income is summarised in the table below and shows on average trusts are contributing 1.78% of income to fund clinical negligence claims. The percentages are higher for acute (2.51%) and foundation trusts (1.83%) which we anticipate is due to the number of maternity claims.
It has been reported that spending on clinical negligence has been increasing much faster than NHS funding and if this continues it must become unsustainable. (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/248285/0576.pdf;
The above costs are the direct costs of clinical negligence litigation and in addition to this must be considered the indirect costs, the impact and consequences of litigation on both patients and workforce. This includes the time needed from clinicians, legal teams and others within the NHS in investigating, providing evidence and managing claims, staff absences due to stress and increased care costs to treat patients harmed.
We have considered alternative tests/standards of care used by some other jurisdictions to establish liability, but many involve similar issues to the current tort-based assessment carried out in the UK, involving expert assessment, lawyers and interpretation of how any new standard of care is applied. We are not aware of any evidence that a different standard of care would promote safety and learning and it is inevitable that any change of such a fundamental nature would give rise to increased costs and time to implement.
Often learning from clinical negligence claims comes too late after the events when some clinicians will have moved on and processes and procedures have changed. It is therefore important that investigation of incidents that might lead to claims are carried out as soon as possible after the events. The Early Notification Scheme provides for this in maternity claims which make up over half of the value/cost of claims to the NHS. We have been involved in several cases where investigation of these cases has led to changes in practices/procedures in a timely fashion:
Many claims are preceded by complaints which provide an early opportunity for investigation and resolution. However, many complainants/claimants are not satisfied by the NHS complaints’ handling process and gave this as a reason why they brought a claim. (https://resolution.nhs.uk/resources/behavioural-insights-into-patient-motivation-to-make-a-claim-for-clinical-negligence/)
The complaints and investigation process within NHS trusts often includes witness comments/ statements but less often an early independent expert report which can be valuable in addressing both patients’ and clinicians’ concerns independently. An improved complaints process will promote local and more timely learning.
In the past, it was a requirement of LSC funded claims that a complaint had been made to a trust before the LSC would provide funding for a claim. This would allow a trust to consider the issues locally before solicitors are instructed and legal costs escalated. It could be a requirement that a CFA and ATE insurance could only be engaged once a formal complaint had been made and response received (or the appropriate period for a complaint response has lapsed).
Early investigations and timely resolution are key to ensuring that lessons are learned from claims (and the incidents that give rise to claims). Some equivalent duty, or onus, by/on claimant advisors to provide early information in the spirit of the duty of candour would facilitate earlier and more effective investigation allowing the NHS to investigate earlier ensuring that patients and their families get early answers, candour and, where appropriate, compensation.
We have suggested in response to the questions below a variety of ways in which pre-action investigations and claims handling have and can be speeded up.
We suggest a less adversarial approach to claims with a focus on early pre-action resolution. Much work has already been done on this both by NHS Resolution and its panel lawyers as well as claimant lawyers and organisations such as AVMA and SCIL. Litigation should truly be the last resort and claimant/claimant firms who litigate prematurely should be effectively sanctioned.
We have been involved in a variety of dispute resolution models including:
Using a variety of dispute resolution methods NHS Resolution now settle the majority of claims without formal legal proceedings being required.
We suggest that this could be increased further by amendments to the pre-action protocol to promote earlier resolution of claims including:
NHS Resolution, its panel lawyers, claimant lawyers and organisations such as AVMA and SCIL have already taken large steps towards greater collaboration.
An expanded Early Notification Scheme may have a role to play in improving transparency and efficiency. It is appropriate that it is focussed on maternity claims given that such claims represent 59% of the total estimated value and 11% of the number new claims. Any expansion of the scheme needs to take into account the following factors:
While the value of the claim is not the sole determinant of importance or complexity, in line with the CPR overriding objective that costs should be proportionate to the value of a claim we consider that there are very few cases of low value where fixed recoverable costs should not apply. However, we consider that there is a case for alternative and higher fees in cases involving stillbirth or early
early neonatal death. Such cases are often similar in complexity to cerebral palsy claims. In order to fully investigate whether a child should/would have survived, one needs multiple liability experts ( obstetrics, midwifery, neonatology and/or paediatric neurology, possibly neuroradiology). Given the complexity experts are unwilling to agree fixed fees. Most of these cases do not give rise to high value settlements, but in addition to their complexity are also very sensitive and the parents have a huge investment in them and deserve answers.
We also suggest that additional fees may be needed for mental health claims such as suicides and failed suicides where there are extensive records and expensive psychiatric expert evidence is needed.
In our experience “blame cultures” are not created by litigation per se. Where blame cultures exist, they are usually present within Trusts first and create or contribute to issues leading to incidents/claims and ultimately litigation. By the time many claims are intimated, claimant and defendant positions are entrenched.
Professionals are regulated and are always subject to their professional body, the GMC for example. They are more fearful of a professional body investigation than adversarial clinical negligence litigation. Giving evidence at inquests can also give rise to blame cultures and can cause great fear. Then it is the fear of saying something wrong and their colleague saying something differently and there being a contradiction between them. Promotion of a just culture is required; challenges to NHS employees are numerous enough; a truly open and learning culture rather than one which pay lip-service protects patients and staff.
No-one likes a complaint/claim but if this was in their student training from the outset ie. how to handle it and be ready for it and which type of issues lead to professional regulation involvement then they would be better equipped to deal with this when inevitably they become involved later in such issues in their career.
The claim process rarely requires court attendance and most cases are resolved without a hearing, or the need for the clinician to explain themselves to the patient and their family.
NHS Resolution and its panel firms are committed to safety and learning from claims and have developed many products and services for trusts to assist with this including:
We provide data analysis and reports analysing clinical claims data and provide insights to NHS Resolution and trusts. We identify hotspots/common themes; volume high risk areas, trends, repercussive patterns; provide focussed training based on data and claims experience; and assist to implement changes.
Trusts use a range of these services to:
While therefore we do see changes in clinical practice as a result of issues raised in a claim, these are not tracked and there is no system to follow up.
Learning from claims is only one part of patient safety and learning and the primary focus of the clinical negligence claims system is not to deliver learning. Evidence-based analysis and insights from claims should not be viewed in isolation and collaboration with multiple organisations involved in patient safety and assurance is required to take the maximum benefit from that information leading to demonstrable outcomes e.g. reductions in cases, values and resolution time.
There is a need to teach clinicians during their professional training more about clinical negligence, inquests, the role of NHS Resolution and what will be needed from them as clinicians both to avoid litigation and when they are required to participate in it. Anecdotally, we are aware that during a 4 year medical course, one medical school gave a one hour lecture about inquests and litigation. Only one person knew who NHS Resolution were. If medics received training about good notes, never events, common claims (and thus what to try to avoid), their role in litigation and inquests, engagement would likely be better which would minimise delays and speed up investigations. Often they are fearful of solicitors but if they knew more about the process, they might engage more swiftly.
Training in communication and patient stories would also be of benefit. Complaints are often generated by a poor initial response and communication and poor handling of complaints leads to claims as the only effective recourse.
Repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948 which requires allows that all compensation awards are calculated on the basis that future care will be provided in the independent sector, and not the NHS, even when there is evidence that it is likely that the NHS will provide that care. Funds are being awarded on the basis that the money will be spent on setting up individual private care arrangements even in cases where appropriate care is being provided by the NHS and there is no need to replace this with privately paid for care. The NHS is in those cases effectively paying for the patients’ care twice.
However, the largest element of many high value clinical negligence claims and in particular maternity claims is not NHS/medical care but rather social care. Legislation is therefore also needed to so that in cases where appropriate care is being provided by the Local Authority and on the evidence it is likely that this will continue, appropriate account is taken of this in the value of any settlement to avoid potential double recovery by the claimant and double payment by the public sector.