Most people, I would argue, do not regularly think about the problems they encounter as having legal implications and consequences, and that they could possibly sue.
Even though some would argue that England has a compensation culture, I would argue that we do not. Taking any form of legal action is prohibitively expensive, time consuming and complex – and can be stressful. Legal aid funding is available only in limited circumstances. Also, if people do go to court, they are unlikely to see a windfall. In England, we do not have juries in civil matters as a general rule and the judge awards any compensation. The litigious big-award image of the US courtroom does not filter through to our courts and civil procedures.
A key and indeterminable issue, given the paucity of research, is whether this line of public thinking about the law changes when they or their loved ones suffer clinical negligence and need to access the civil justice system. Given there are lots of variables to consider, this is difficult to answer and we need more research to get an informed picture.
A National Audit Office (NAO) (2017:28) report suggests possible reasons contributing to the rise in costs of clinical negligence claims in the NHS between 2006-07 and 2016-17:
- Patients:
- Change in patient awareness and attitudes to making a claim
- Change in patients' access to legal services
- Rising NHS activity
- Hospital
- Worsening patient safety
- Worsening patient experience.
What is clear is that the costs of clinical negligence have increased over the years and the reasons for this remain largely a matter of conjecture. According to the House of Commons Health and Social Care Committee (HCHSCC) (2022:3):
‘… costs … have continued to grow at an eye-watering rate. 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.’
Clinical negligence in the courts
My reflections on the general public's perceptions of the law and their involvement, generally and in relation to clinical negligence, were prompted by two recent publications, which discuss the problems patients have encountered when seeking to resolve clinical negligence claims through the court process. Hayward et al (2024) and Times Health Commission (2024) also look at whether we need root-and-branch reform and make a move towards a no-fault system. They suggest our adversarial, fault-based, tort compensation system does not serve the public interest well and is arguably outdated. And there has been a regular debate on these issues for several years, with the government looking at possible clinical negligence reforms (Hyde, 2022).
Hayward et al (2024) discuss the issues that led to a key recommendation in a report from the Times Health Commission (2024:3):
‘Introduce no-blame compensation for medical errors with settlements determined according to need to ensure families get quick support and encourage the NHS to learn from mistakes.’
Chancellor and former Health Secretary Jeremy Hunt backed the commission's recommendation, which would help end ‘a deadly cycle of NHS scandals and cover-ups’ (Hayward et al, 2024). He said that a no-fault system would prevent further patient safety tragedies by focusing on ‘learning from mistakes so that they're not repeated’, rather than ‘getting lawyers involved ‘and pinning the blame on individuals’ (Hayward et al, 2024). The change would hope to end long court battles to establish clinical negligence. An overhaul of the compensation system is needed to reduce spiralling costs. Hunt, as reported in Hayward et al (2024), talked further about developing a learning culture and, among other issues, cited the problems of lengthy litigation:
‘What do we do? Lawyers get involved, people clam up, there's a court case, it takes five to seven years and in the end the parent will probably get the money they want, after a hell of a battle.’
Hunt made some good points, and these can be seen in some detail in the NHS litigation reform inquiry (HCHSCC, 2022), which he chaired. There is more discussion of clinical negligence issues and fault in the Times Health Commission (2024: 53), including the blame culture. The report quotes academic legal expert Sir Ian Kennedy, who specialises in the ethics of health care:
‘We have a massive industry called clinical negligence litigation. The more the money claimed, the longer it takes to get it because the hospital or the doctor will resist. The big question is why in addressing this need do we have to find someone to blame?’
Times Health Commission, 2024: 53
Little consensus
The issue of clinical negligence reform is a long-standing issue and one clearly linked to NHS patient safety culture development. There have been fears expressed for several years that the need to prove fault and apportion blame may inhibit the reporting of errors, and also lead to more defensive clinical practices, such as ordering more clinical tests. There is a myriad of views on this, as seen in the NHS litigation reform inquiry report (HCHSCC, 2022).
Whither no fault proposals?
One critique of the Hunt/Times Health Commission (2024) no-fault recommendation can be seen in a blog for solicitors Leigh Day (Moore, 2024), which discusses the Vaccine Damage Payment Scheme (VDPS):
‘The VDPS is a good example of how setting up a “no fault” redress scheme without close attention to payment mechanisms, maximum awards, resourcing and management can be counter-productive and ill-serve the people that it was intended to help.’
The blog discusses the scheme, the problems encountered with it, and how it is:
‘… currently offering too little, too late, to too few people.’
Moore makes some powerful statements on the efficacy of no-fault schemes. There is also the question of the need to still prove causation, which is the most difficult matter to prove in a traditional clinical negligence case – namely that the breach of duty must have caused or materially contributed to the damage suffered.
Pros and cons of no-fault schemes
No-fault schemes cannot be seen as a panacea to cure all the ills of our clinical negligence system, as those schemes have problems as well. There are no easy fixes. We should not drift down the route of ditching our established way of dealing with clinical negligence claims in favour of a no-fault system.
This was rejected long ago on several grounds, including affordability, in Making Amends, a report by then Chief Medical Officer Liam Donaldson (2003), which included a detailed discussion of the advantages and disadvantages of no-fault schemes. Even though the report was published over two decades ago, it can still be used as an excellent focus on the issues of clinical negligence reform and the scoping of relevant matters. It stated:
‘Given the disadvantages set out at paragraph 9, the potentially large costs and the practical difficulties in framing an efficient comprehensive no-fault based scheme, not least to conform with the Human Rights requirements, I have rejected a wide-ranging no-fault scheme for all types of injury.’
Donaldson, 2013:113
Can attributing blame be good?
Attributing blame, as we do in the present tort-based, adversarial civil justice system, can, in my view, be seen as a good thing in terms of professional accountability, transparency, deterring bad practices and as a channel for health carer education. These can all be seen as essential prerequisites for the development of an effective and proper NHS patient safety culture.
This is all predicated on my view that all professionals should be personally responsible and accountable for their actions – that they owe, as professionals, an individual professional as well as a legal duty of care to their patients and clients and that they should not try to hide, shelter behind notions of systems theory to diffuse blame and responsibility when it is their fault.
It may be that there are also systems problems, understaffing, poorly maintained equipment, among the matters that have contributed to the problems. These should also be factored in. It is recognised by the courts that systems can be at fault as well: there is a concept known as systems negligence that I have seen in the cases, known as direct liability.
A sense of closure and justice being seen to be done
The negligently injured patient, in my view, is given an important sense of closure when succeeding in a traditional negligence claim using the present system. Addressing the Personal Injuries Bar Association, former Supreme Court Justice Lord Sumption cited several matters that are important to discuss with regard to these issues, including the role of deterrence in tort and fault, and blame attribution:
‘The public's view is based on two simple moral judgments. One is that he who causes physical injury must make it good financially. The other is that it is a proper function of the courts to find facts and distribute blame, simply as a satisfaction for victims or their relatives.’
In a traditional tort-based claim, we can identify fault and hopefully fairly attribute blame. There is also the idea of deterring future bad practices and learning from what happened. These seem to me to be the main benefits of our traditional tort-based fault system of resolving clinical negligence claims, which I fear would be lost by having a no-fault scheme. A fear also discussed in Donaldson (2003).
Conclusion
I would not alter the way in which we deal with clinical negligence cases in our civil justice system, as per recommendations made by Hunt and others (HCHSCC, 2022; Sylvester, 2023; Times Health Commission, 2024; Hayward et al, 2024). I do not think that the arguments for change have been made fully, particularly in regard to no fault-based liability schemes.
Finding fault and attributing blame can be good things in terms of professional accountability and transparency. Professionals need to take responsibility for their actions.
The current compensation system may also be seen as a useful mechanism to deter poor practices and to educate. We also need to ask ourselves what makes clinical negligence litigation so special that it deserves its own system of civil redress?
There are acute dangers with no-fault schemes, and they should not be seen as a panacea to cure all the ills of the way we currently compensate patients for clinical negligence.