Barristers from Exchange Chambers criticise proposed reforms to clinical negligence litigation

May 6, 2022

A committee of MPs has called for a complete overhaul of the way compensation is paid to NHS patients who have suffered harm.

The Health and Social Care Committee has called for the effective abandonment of adversarial clinical negligence litigation for most cases and the establishment of an independent administrative body to investigate cases and determine compensation.

The Committee has recommended a change in the law so that access to compensation is based on agreement that correct procedures were not followed and the system failed to perform, rather than having to meet the threshold of clinical negligence.

It also wants all compensation to be based on the costs necessary to top up care through the NHS, rather than the current assumption that care will be provided privately. They further advocate the scrapping of the expected future earnings link in claims for people under 18, a system that leads to ‘manifest unfairness’.

Committee chair Jeremy Hunt MP, a former health secretary, said the system of compensating patients is long overdue for reform, and it was unsustainable for the NHS in England to pay more than £2bn in negligence payments every year. “We need a better system that learns from mistakes, following the lead of countries like New Zealand and Sweden. We must move away from a culture of blame to one that puts the prevention of future harms at its core,” he said.

Barristers from Exchange Chambers’ clinical negligence team have criticised the Health and Safety Committee’s proposals.

Said Bill Braithwaite KC:

“Yet again, an ill-informed committee recommends no fault compensation for clinical negligence claims, the central reason being that lawyers’ costs are too high. As always, no-one mentions the unconscionable medical negligence which has led to the claims, or the apparent lack of learning, re-training and support for those who have ruined lives by their carelessness.

Interestingly, even the Medical Defence Union, which provides medical insurance for healthcare workers, and which funds the defence of many clinical negligence claims, doesn’t agree with the main premise of the recommendation, namely that the need for an injured person to prove negligence should be abolished.

Of course, these two fundamental suggestions are accompanied by others, none of them logically supportable. For example, the notion that injured people should have to try to manage their problems on the NHS is anathema to anyone who has tried to do that, and even more so to those like me who have witnessed what an awful job the NHS can do in relation to rehabilitation following severe (brain) injury.

The phrase they use is ‘the costs necessary to top up care through the NHS’, which of course would create its own nightmare of litigation, because identifying what is necessary depends of the view of what the NHS can provide.

As a matter of fact, the reason that the claims are presented on ‘the current assumption that care will be provided privately’ is that experience has taught us that that is essential, and also because it is what the basic rule of law in this country is, namely fair recompense for what has been lost.

The committee says that ‘the current system makes learning from mistakes harder not easier, seeking out individual failings’, an assertion that has been made many times, but has no evidential foundation that I know of.

What the committee does not appear to have said, but which has always been implicit in this type of suggestion going back many years, is that compensation for people injured by the carelessness of the NHS would be capped to a very low level.

Taking one recent example of a young person injured by clinical negligence, the court decided that an appropriate lifetime award was nearly £30 million, to provide the necessary support to give decent quality of life. Either that has to come from the NHS or local authority, or by way of ‘top up’. Alternatively, and this would almost certainly be the suggested solution, there will be a financial cap, limiting the amount of compensation to, say, £500,000, as has been done in the Criminal Injuries Compensation scheme. That would be profoundly unjust, and would fly in the face of our established system of compensating people properly for negligent harm done to them by others.”

Said Gerard Martin KC:

“The recommendations of the Health and Social Care Committee to scrap clinical negligence claims has a superficial attraction in removing the present hurdles to establishing liability for an adverse outcome and relieving the stress of litigation from those injured – the consequence of which would be a dramatic increase in claims for compensation being made at significant cost to the state.

The obvious downside to the proposed scheme is to require applicants to resort to state aid as a first step in recompensing them and then top up by way of a further award from the state.

Social care in this country is in dire need of root and branch reform. It is presently in a state of flux with the imminent arrival of integrated care systems to replace CCGs which will take years to bed in.

This proposed scheme seems to throw away the enshrined principles of English common law – that the victim is entitled to full compensation and to be put back into the position he was in (as far as money can) before the injury.  This will not happen if the scheme is reliant on inadequate and under-funded state social care, and if there are limits placed on the size of the new top up awards as there inevitably will be if the state is to fund the proposal.

This is all at the expense of the victims of medical accidents, with the aim of relieving the taxpayer of the burden of the NHS bill for litigation. I have grave doubts that the scheme has been properly costed, nor its implications made known to the public.”

Said Chris Barnes KC:

“The Health and Social Care Committee’s recommendations for the reform of NHS litigation are flawed in numerous ways, not least:

• In the blame it lays upon claimant lawyers for leveraging or maximising their costs when, in fact, the principle driver for the sizeable costs incurred is the refusal of NHS Resolution to engage in early or constructive discussion, mediation or settlement negotiations. It remains unique amongst insurers or claims handling organisations for the defensive and obstructive approach that it takes, with numerous settlements occurring at the doors of court despite the huge costs that prompts.
• In suggesting that a child’s future loss of earnings should be assessed by reference to a national average rather than their particular circumstances – if an individual claimant’s own circumstances are to be ignored then the assessment of every head of loss would fall to be revisited, with significant under compensation of some and over compensation of others. It would do away with the well-established practice of compensation restoring an injured person to the position they would have enjoyed absent the negligence.
• In the emphasis that is placed on allowing for a “top up” of care costs only to the extent that they are not met by the state. The current law contains numerous safeguards preventing double recovery of care costs and the costs to the state will be the same whether or not part of the care costs are met through payment of compensation or direct payment by social services or the local NHS Trust.
• In suggesting that an independent inquisitorial system is the answer to all the purported ills of the current system. There would still need to be an investigation of ‘avoidable harm’ and, given the resulting payment of compensation, there would still be an adversarial process with NHS Resolution or the individual trust seeking to argue and avoid any such finding.
•  In relying on the decision of the New Zealand parliament to alter the legislation underpinning their system of clinical negligence. That decision led to the imposition of a non-fault based compensation scheme different to that which the Committee is suggesting. Such a scheme within the UK would likely increase the overall costs to the state rather than decrease them.

The one recommendation of the Committee that is to be welcomed is the compulsory use of alternative dispute resolution mechanisms. If adopted appropriately, and with appropriate buy-in from NHS Resolution, that would have the potential to substantially lower both the duration of, and the costs arising in, claims. Further, the acknowledgement that the introduction of fixed recoverable costs in claims below £25,000 may compromise access to justice for the poorest claimants is welcome and will tally with the experience of many working in the sector.”

Said Chris Gutteridge:

“Jeremy Hunt’s reference to patients enduring a ‘bitter, slow and stressful fight’ for compensation is one that will sound painfully familiar to injured people pursuing claims against the NHS and other compensating bodies.

However, the reason for the delay, the stress and the combative litigation is the approach taken by defendants to these claims.

All claimant lawyers working in clinical negligence will have experience of defendants attempting to ‘defend the indefensible’, dragging out claims and settling at the last minute. The claimants I work for, who have sustained catastrophic, life-changing injuries as a result of medical negligence suffer the strain of this ‘fight’ alongside dealing with the disabilities their injuries have caused.

What we need is a change in culture – a realistic and collaborative approach that avoids unnecessary litigation and delivers fair compensation to injured people. Suggesting the introduction of a system which deliberately restricts the right of injured people to fair compensation – by, for example, removing the right of people to pay privately for carers to meet the needs caused by their injuries – is a step in the wrong direction. These recommendations would create more unfairness, more injustice and would be hugely expensive to implement and administer.”