The high and increasing cost of clinical negligence in the NHS has long been a contentious issue. NHS Resolution (2021) has frequently referred to the issue in its annual reports and most recently the House of Commons Select Committee on Health and Social Care has been holding an NHS Litigation Inquiry (https://tinyurl.com/2p84u4vm), discussing matters in depth.
Linked to the clinical negligence costs issue is the position of the harmed patient and their perspective. How should that be captured and factored into policy discussions, and debates on compensation system change? When the debates and policymaking take place the patient's perspective is often neglected or downplayed. It must be remembered that they have been avoidably, negligently harmed by those who were meant to care for them. The law's aim is to put them back in the position that they would have been in had that harm not occurred. As I have said previously in this column, money is a poor compensator for the loss of a faculty, amenity or a loved one.
To compound the problem of the missing patient's voice, we sadly find the media often reporting with a banner headline that the injured claimant has ‘won’ compensation or in more neutral terms that there has been a ‘payout’. The patient has not ‘won’ anything. They have received just compensation for being the victim of clinical error.
The economic debate
The economic argument is often used by those who are arguing for changes to our compensation system and litigation cost containment measures. The argument goes that the money paid out to those injured by NHS care failings could have been spent on frontline NHS healthcare resources and has come out of the NHS budget. This is a strong argument, which has galvanised deep thinking into why costs have increased and as to what should be done about the matter. There have been several recent reports on the matter.
The Department of Health and Social Care (DHSC) has provided two pieces of written evidence recently to the House of Commons Select Committee on Health and Social Care as part of the inquiry into NHS litigation reform (https://tinyurl.com/2p84u4vm). The written evidence presents a well-thought-out and comprehensive analysis of the issue of the rising costs of clinical negligence and, refreshingly, does advance the patient's perspective as well. This is encouraging and, hopefully, will be the template for future reports and discussions.
The original submission details the high cost of clinical negligence cases in the NHS and gives essential context to the debate:
‘However, the costs of clinical negligence claims are rising at an unsustainable rate; annual cash payments have quadrupled in the past 15 years to £2.2 billion in 2020-21, equivalent to 1.5% of the NHS budget. In addition, claimant legal costs are frequently disproportionate to the level of damages (compensation) awarded, particularly in lower value claims.’
These are essential reading material for any health professional or manager involved with patient safety, complaints and health litigation. The DHSC (2021) evidence covers:
- Cost and impact of clinical negligence
- Addressing the rising cost of clinical negligence
- Developing a learning culture in the NHS
- Improving claim resolution.
Table A in the supplementary submission has some interesting findings. The NHS has been spending an increasing proportion of its resource budget (which would otherwise be spent on patient care) on claims. The spending on claims is significantly more than in some countries:
‘However, neither the Government's own enquiries nor the published literature have yet yielded a full explanation as to why per-capita spending on claims in this country appears significantly higher than in all these other countries. While cost of claims per capita in England was £42.1 in 2018-19, for the same year in Scotland this was £6.9, in Sweden it was £5 and New Zealand it was £18.7.’
DHSC (2022) does sound an important note of caution on international comparisons and states that making direct comparisons between countries is difficult due to several factors, including state provision of services legal systems, and so on.
Response to patient harm
There is a discussion of improving patient safety and response to harm. The NHS should ensure patients' needs are met, and the importance of the NHS giving a good response to incidents is stressed in the report—examples include giving a clear explanation and apology to patients (DHSC, 2021).
There is also a discussion of how the current claim resolution process works and how current legal processes for clinical negligence claims do not always serve claimants or NHS staff well:
‘The system is complex and can often take years to reach a conclusion. However, the majority of claims resolve without formal court proceedings, and very few claims ultimately go to trial.’
DHSC, 2021:14
Patient rights
The DHSC (2021: 15) sounds a note of caution on the desire for speedy claims resolution and a smooth claimant experience not cutting across patient access to justice and appropriate redress. This is an important recognition that the debate here is not all about saving money and developing a speedy, efficient system. Patients matter as well and should be factored into any reform equation. The report also stresses the need to obtain value for money for the NHS and the taxpayer.
Overall, these documents provide well balanced, informative discussions on our clinical negligence compensation system and patient safety, as well as some unique insights, particularly on international comparisons.
The value of compensation
The Association of Personal Injury Lawyers (APIL) commissioned a research report from Opinium Research ‘to better understand how financial compensation affects the lives of patients who have been injured as a result of NHS negligence’(Opinium Research, 2022: 4).
Too often, the report emphasises, the NHS clinical negligence debate is based on the costs and not on the people who have suffered from the negligence:
‘In the NHS negligence compensation debate, too often the emphasis is placed on the cost to the NHS and not on the people who have suffered due to negligence. This human-centric research puts the spotlight back onto patients and provides a platform for them to talk about their experiences in an open and honest way.’
This report should be read by all those with a stake in patient safety, health quality, complaints and health litigation. Topics covered include:
- The impact of negligence on health and the value of compensation
- Financial implications of negligence and how compensation helps people get back on track financially
- Compensation can provide justice
- The process of claiming.
Research for the report involved 15 in-depth interviews with people who had received compensation for NHS clinical negligence within the past 15 years. Participants were interviewed from across the UK, had different experiences of clinical negligence, and there was a spread of age, gender and ethnicity.
The findings of the report are wide-ranging and cover several key issues that themselves require further research. They include a discussion of the consequences of NHS negligence. NHS negligence does cause significant disruption to the lives of patients and their families along with others. People's physical, emotional and financial health can be affected.
‘With the help of compensation, some can recover from, or adapt to, the consequences of NHS negligence relatively quickly. However, compensation doesn't always stretch to help with the longer term effects of negligence, which many suffer from for the rest of their lives.’
It discusses both the direct and indirect costs of the injury caused by negligence, and how compensation helps people to rebuild their lives. Private treatment is often a key factor in recovery. Compensation can be an effective acknowledgment of what can't be replaced:
‘On an emotional level, compensation can be perceived by the patient and/or their next of kin to be recognition of the injustice experienced. Families experience avoidable pain, suffering and loss as a result of negligence and it is important to acknowledge, and be empathetic towards, the real-life consequences felt by individuals.’
Other issues considered include how where negligence has caused uncertainty about the future, compensation offers reassurance, and that ‘compensation has a key role in providing a sense of security’ (Opinium Research, 2022:7). It highlights that the compensation awarded is ‘not life changing’, it simply helps people get back on track. The point is made that compensation paid should not be seen as a ‘step up’ for a patient's standard of living, but rather helping them to return to a level of normality:
‘… or an adaption to a “new normal”, post the negligent event.’
Importance of recognising wrongdoing
The final finding given is that compensation isn't about shaming the NHS, but about recognition of wrongdoing. This is a key feature of our fault-based compensation system. Attributing fault can be a good thing in terms of justice, accountability, transparency and learning. I would argue that it is inherent in the duties of any professional engaged in any sphere of activity that they should be answerable for their actions. It may be that systems are also at fault but being a professional has consequences and outcomes. This is because people trust and rely on a professional's decision-making. They offer a service that people rely on:
‘Many patients mention their admiration and respect for the NHS and the work that they do, and some mention not feeling particularly happy at having to take action against them. However, it is considered important that negligence and wrongdoing are recognised and equally that these experiences are not repeated for others.’
Conclusion
The reports discussed in this column provide interesting and, I would say, some unique perspectives on the efficacy of our tort-based compensation system for NHS clinical negligence and on issues related to patient safety. We have seen in the reports discussed here, and in my past columns, the calls to address the increasing costs of clinical negligence and the arguments being vented by stakeholders. The oral and written evidence presented to the House of Commons Select Committee on Health and Social Care provides a rich source of information and research on these vexed issues. There is an economic perspective to the debate but there are also the interests of patients to factor in, and the APIL-commissioned report raises some key issues for any clinical negligence compensation scheme discussion.