28 January, 2020
There has been a number of recent news articles in relation to the NHS facing huge clinical negligence fees. The article on the BBC states that, through a Freedom of Information request, it has come to light that the NHS in England faces paying out £4.3billion in legal fees to settle outstanding claims of clinical negligence*.
It is reported each year the NHS receives more than 10,000 new claims and so the fees the NHS face appear to be unsustainable. However, it is also worth noting that the patient's legal fees are only payable by the NHS if their claim is successful. Therefore, all the legal fees paid must be on valid claims.
The Clinical Negligence Scheme for Trusts (CNST) handles all clinical negligence claims against member NHS bodies where the incident in question took place on or after 1 April 1995. Although membership of the scheme is voluntary, all NHS Trusts in England currently belong to the scheme. The scheme is administered by NHS Resolutions and they manage the costs that arise when things go wrong. This scheme funds the vast majority of claims and legal fees.
The BBC report that in 2019/20 it is expected that hospitals will put £1.9billion of contributions into the scheme. The contribution levels of each hospital are influenced by a number of factors, including the type of trust, the specialties and claims history.
There is calls for reform of the current system including a change in the way compensation is calculated, given that the awards tend to be higher than almost anywhere else in the world. Although, if any changes were to happen to funding in clinical negligence claims it will reduce the access to justice for the victims of negligence.
Compensation is designed to put the injured party in the position that he/she ought to have been in had the negligence not happened (in a monetary sense at least). If you need care and cannot maintain your job this can have repercussions for your whole family.
The more appropriate approach in my opinion is that of the Association of Personal Injury Lawyers (APIL) who have commented that "What we should be looking at is improving patient care and patient safety. We will then have fewer injured patients and the cost of litigation will then come down." They go further, "the idea that anyone can come in off the street and bring a claim is nonsense. You cannot blame the cost on the injured patients".
Many people do not want to take legal action but just want answers as to what went wrong and to make sure it does not happen to other patients. Through transparency and openness, it should allow hospitals to learn from mistakes and improve their service. This should be assisted by the statutory duty of candour, which was introduced in 2014. It is a legal duty to be open and honest with patients or their families about incidents that have caused, or have the potential to result in significant harm, including psychological harm. In other words, the hospital must tell you about any incident where the care or treatment may have gone wrong and appears to have caused significant harm or has the potential to result in significant harm in the future.
NHS Resolution attempt to keep down costs by promoting mediation. Approximately 70% of claims are settled outside of court.
Spending billions on claims is not how many would like the NHS's budget to be used, which is rather a short sighted view. Although we do not disagree that the NHS has a limited budget and requires additional funding, this is no excuse to put patient lives at risk. Instead of victim blaming, the Government should work to address the cause of the avoidable harm and stop patients being put at risk in the first place.
For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.