The cat is now truly amongst the pigeons in the debate about the high cost of clinical negligence in the NHS

By John Tingle

UK national and social media have been buzzing all last week about a letter sent on Monday 29th January 2018 by the NHS Confederation to the Justice Secretary and copying in the Secretary of State for Health.BBC  news set the scene under the banner headline, ‘Curb rising NHS negligence pay-outs, health leaders urge’.

The NHS Confederation is a charity and membership body that brings together and speaks on behalf of all organisations that plan, commission and provide NHS services. Members are drawn from every part of the health and care system. The letter coordinated by them had several co-signatories in the medical establishment including the Chief Executives of the doctor’s defence organisations, the British Medical Association (BMA), The Academy of Medical Royal Colleges. The letter said that the current level of NHS compensation pay-outs is unsustainable and is diverting significant amounts of funding away from front line care services. Last year the NHS spent £1.7 billion on clinical negligence claims, representing 1.5 % of front line health services spending. This annual cost has almost doubled since 2010/11 with an average 11.5 % increase every year:

The estimated total liabilities of the scheme in England were £65bn for the financial year 2016/17 and this is expected to rise again this year. This staggering sum is to pay for clinical costs both this year and in future, which relate to claims arising from incidents that have already happened”.

The signatories would all like to work with the Ministry of Justice and the Department of Health to consider a more coordinated strategy and fundamental reforms to control the rising cost of clinical negligence claims. They refer to the National Audit Office recommendation of a coordinated strategy being developed by September 2018.

The letter has provoked anger and outrage from patient support groups and other commentators in the field of patient safety and clinical negligence

AvMA

Action against Medical Accidents (AvMA) is the UK charity for patient safety and justice. They feel the debate is not focusing on the right, basic underpinning issues. The focus should be on investing in better patient safety, NHS funding and on helping stop patients being injured or killed through negligence in the first place. AvMA Chief Executive, Peter Walsh stated:

“Most people who are passionate about the NHS want to see it properly funded. However, it is ignorant and uncaring to suggest that people who have been harmed or have lost loved ones because of NHS negligence should forfeit the compensation they need and deserve because the Government is not prepared to invest enough in-patient safety or NHS services. Those proposing it should hang their heads in shame.”

The battle lines are now being drawn to help shape government clinical negligence compensation policy. There is mobilisation of stakeholders and further activities are planned. It’s clear that any debate should however also focus on the fact that its patient safety errors that generally cause lawyers to be involved. If we improve funding to our patient safety system and the NHS then errors will hopefully be reduced and there will be less litigation and complaints.AvMA make this point very clearly.

Also the debate cannot just focus on the economics and rising costs, we must  also ask why patients sue and litigate and take a broad, more conceptual, joined up, holistic view of the problems. What should a compensation system hope to achieve and what principles should it be based on? Should the NHS be viewed as a special  case in our adversarial tort based compensation system?

The debate promises to be a very interesting one and will be of  global interest as many countries struggle with these issues and on how to achieve a just and equitable balance of interests.

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