The debate about the best way to compensate patients for the negligence of health professionals is hotting up. The House of Commons Select Committee on Health and Social Care, chaired by former Health Secretary, Jeremy Hunt, has recently published its report on NHS litigation reform (Health and Social Care Committee (HSCC), 2022). This has produced a radical set of proposals that, if adopted, would fundamentally change our clinical negligence compensation system. Among the oral and written evidence submitted by experts, patients and other stakeholders involved in litigation we can see divergent and controversial views on the efficacy of our current tort-based system.
Concerns about cost and blame
When viewing the recommendations, it is important to guard against a purely economic perspective of the issues. The report clearly echoes the concerns of many that something must be done about the rising cost of clinical negligence in the NHS (Hyde, 2022). I agree, but at the same time, patients have been injured by those who were meant to care for them. It is important not to prejudice their right to sue based on the economics of the NHS and to maintain a balanced perspective on the issues. Rising costs are an acute issue but the reasons for the increase are many and cannot seemingly be laid solely at the door of lawyers and the adversarial nature of our tort compensation system.
The tone for the whole HSCC report can be seen in the executive summary:
‘Ten years ago, the NHS paid £900 million in damages; last year it was £2.17 billion—equivalent to the annual running costs of the biggest hospital Trust in England or four average sized hospitals. This sum is set to double over the next decade to £4.6 billion, and around a quarter of such costs go not to families but to lawyers.’
It should be stated at the outset that clinical negligence is no ordinary area of legal practice. It is complicated, requiring specialist lawyers to handle such issues as breach and causation. It is stated in several places in the expert evidence that even a small matter in a clinical negligence case can be just as complex as a big matter in terms of issues. The argument that the resulting increasing costs of clinical negligence are a result of patient safety lapses is not supported:
‘… Snowballing costs are not related to a decline in patient safety, rather they are the result of a growth in claims and steep increases in the value of awards and claimant legal fees. Indeed, adversarial litigation makes learning from mistakes harder not easier.’
The point is made that a clinical negligence case focuses on individual failings, whether the individual nurse, doctor or trust was negligent. There is a micro focus on the discrete issues of the case and on the fault of the defendant.
‘Rather than reviewing cases in a way which accounts for context and system failure, a system focused on clinical negligence seeks out individual failings.’
Proposals for change
The report argues that our current adversarial compensation system makes it harder to learn lessons from past adverse events, and stands at odds with how the NHS should respond to care failures. The priority should be the prevention of future harm with a move from a blame culture to a learning culture.
The central recommendation is for the creation of a new administrative body to investigate and determine eligibility for compensation:
‘The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning. We recommend that when a patient is harmed, they or their family should be able to approach an independent administrative body which would investigate their case and determine whether the harm was caused by the care they received and if, in the ordinary course of events, it was avoidable … Should it be found that the patient suffered harm because of their care, they would receive compensation.’
The new body would be the compulsory first port of call for claimants. If the matter is not resolved they could then access the normal tort-based compensation system. In terms of the newly proposed administrative system the report advocates a move away from trying to establish negligence through the established legal definition, which is set at quite a high standard—in lawyers' shorthand, the ‘Bolam principle’, which derives from the case of Bolam v Friern Hospital Management Committee. Herring (2020: 108) discussed the Bolam decision and its effect:
‘It would be necessary to show that there is no responsible body of medical opinion that would have approved of acting in that way’
The system proposed by the HSCC would move to a lower standard:
‘Compensation should be based on agreement that correct procedures were not followed and the system failed to perform, rather than the higher threshold that there has been clinical negligence by a hospital or clinician. Whilst this widens the pool of people entitled to compensation, the evidence from countries that have adopted such an approach is that overall costs will be lower not higher.’
Other recommendations include dealing with how compensation and damages are calculated, and alternative dispute resolution.
Other senses of realism
Showing deep thinking and thorough research, this is a bold report and the Select Committee does not mince words.
It is also important to read the views of other stakeholders who gave evidence, to obtain a full picture of the issues of clinical negligence reform in the NHS. The oral evidence transcripts are available online (https://tinyurl.com/5x7pt642) as is the published written evidence (https://tinyurl.com/2p8bzh9v).
What I liked about the Bar Council's written evidence was that it covered the conceptual foundations of the present tort system in a well-balanced way. The response talks about the law of tort being flexible—able to develop and adapt to changing circumstances. It is also argued:
‘A new statutory scheme for clinical negligence claims is a project of phenomenal ambition. For all its defects the tort system can adjudicate on a range of claims and novel situations giving it a flexibility which a statutory scheme may lack.’
Learning and litigation are different
The most telling section in the Bar Council's evidence for me deals with the committee's question on how important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action. The Bar Council's response casts the definitive argument that you cannot conflate the two. Patient safety learning and litigation are separate matters. One does not lead to the other.
‘In law there is no ‘clinical negligence’ system rather clinical negligence is a label given to one type of tort claim. To put it another way the NHS is in law no different to any other tortfeasor. Litigation has never really been understood to encourage lesson learning and commitment to change and indeed to suggest the tort system should encourage this, as a principal aim, is to misunderstand the purpose of tort law which is to compensate the victim and not to punish or prevent recidivism by the tortfeasor.’
There can be seen a clear split or division between the aims of the tort litigation system and more broadly the lesson learning from past adverse events, which the committee does acknowledge in its report. The processes have different aims and functions. Is it really the role of the law, of lawyers and judges in a case, to think about encouraging safe NHS practices and to help system-wide patient safety learning? They are not best placed to advise on clinical and patient safety matters, which require detailed clinical research. Their focus is on the litigation case that they are involved with.
Hempsons Solicitors (2021) argued:
‘It is hard to see how there can be any very effective relationship between the way compensation is awarded and the process of learning lessons.’
An example of the dangers of mixing up the aims of litigation and broader patient safety system learning is provided when the case of Roe and Woolley v Ministry of Health is discussed.
‘Whatever the merits of that decision (and it is now thought to have been mistaken) it put back the cause of spinal and epidural anaesthesia in this country by 40 years. Until the 1970's epidural anaesthesia was rare and spinal anaesthesia did not become commonplace until the 1990's. This was largely due to the adverse impact of a generation attempting to learn the lessons of litigation when our cases are best seen as anecdotal illustrations of danger, rather than presenting a template for safe practice based on the sort of evidence that medicine now demands.’
Conclusion
I maintain the view that you can learn system patient safety lessons from past litigation cases, they are useful education and training case studies and tools. We can also conduct trend analysis from them. This should, however, be seen as a side-line benefit and not the raison d'être of the clinical negligence litigation process. You should not be asking the courts to improve patient safety nationally, that is going beyond their remit and job.
The HSCC (2022) report and the evidence submitted provides a rich seam of information for the Government in its current review of the clinical negligence system. There are no easy answers and a veritable plethora of issues to discuss.