In autumn last year the Health and Social Care Committee invited evidence on NHS litigation reform in the light of perceived increasing litigation costs. By the close of the consultation period in October 2021 more than 60 written responses to the consultation had been received from a range of interested parties, including the Healthcare Safety Investigation Board (HSIB), the Bar Council, claimant and defendant law firms and healthcare providers. The committee subsequently heard oral evidence from experts and the families of those affected by failures in NHS care.

In an article first published in the New Law Journal, Hugh Johnson and Miriam Spencer evaluate the litigation process in the context of NHS care. Presenting the Stewarts response to the consultation, they ask whether root-and-branch reform is really the answer?

The frame of reference for the consultation indicated that the committee looked at several themes as part of its inquiry, including:

• Changes that could be made to the way compensation is awarded
• The prevention of error
• Whether the adversarial litigation process results in a ‘blame culture’, and
• Limiting costs for lower value claims (fixed recoverable costs).

Rising litigation costs?

A key message in answers from across the clinical negligence sector was that contrary to the premise of the consultation, the cost of current NHS litigation (both damages and claimant legal costs) is reducing. That is reflected in the annual report of NHS Resolution (“NHSR”), the body responsible for defending claims against the NHS. The 2020/21 report highlighted:

• Liabilities arising from claims under all indemnity schemes at the end of this financial year have decreased by £1.3bn
• The cost of settling claims in 2020/21 reduced across all schemes by £120m to £2.26bn.

Clearly, there is no inexorable increase in litigation costs year-on-year. While litigation costs are undoubtedly substantial, it is also important to put the cost into context: the figures represent less than 2% of the overall NHS budget.

Not only are the litigation costs reducing, but the number of new claims reported each year has remained reasonably consistent. Indeed, it may be argued that with a seven-year average of 11,200 new claims per year, the claims volume is very low. In contrast, the King’s Fund now estimates that the NHS makes 1.5 million patient interventions a day.

A ‘no-fault’ system

Those who oppose the current adversarial clinical negligence system, such as the British Medical Association (BMA), call for a ‘no-fault’ system, akin to the one that has operated in New Zealand since 1974. A no-fault statutory scheme has frequently been mooted since the Pearson Commission first proposed it in the UK in 1978. The scheme would enable compensation from a public fund to all patients who had suffered “avoidable harm”, without the need to prove liability.

Some elements of such a system appear attractive. For example, it may encourage clinicians to report patient safety incidents and their actions constructively and with improved transparency. There are, however, significant concerns as to how a no-fault system would operate in practice in the UK. A statutory scheme would impose limits on compensation, which would lead to injured patients being required to accept less than full and fair compensation for their losses.

From a financial sustainability perspective, it is suggested that a no-fault system could reduce litigation costs, but that has never been costed. NHSR data reveals that in 2020/21, 43.8% of claims were settled with no damages paid. In addition, there will be patients with adverse outcomes who have elected not to litigate or been advised that the prospects of success are poor. Under a statutory scheme, with no requirement to prove negligence, it seems inconceivable that the number of claims and, in turn, NHS damages payments would not increase.

Improving the current system

While there were some calls for complete systemic reform, many respondents proposed improvements to our well-established tort system and, separately, identified areas for development within the NHS. The questions posed by the consultation conflated the entitlement to compensation for negligently inflicted injury and the aim of improving future patient safety. The distinction should be clear. The litigation process is undertaken to secure vital compensation for claimants who require it to meet their costs of essential care and support. The promotion of learning from mistakes and errors is an essential mechanism to prevent future mistakes of a similar type. It is within the gift of the NHS to do this, albeit that the authors accept that there is no “quick fix”.

A key theme in most responses is the call for a more robust and open system of investigation and dissemination of lessons learnt throughout the NHS to avoid repeated or similar incidents. The litigation process was not intended to and cannot achieve those outcomes.

In May 2021, Getting it Right First Time (a national programme to promote improved clinical outcomes) and NHS Resolution published the guide Learning from Litigation Claims: Getting It Right First Time. The guide highlighted that frontline clinical staff often did not know about the claims arising from care and treatment provided in their own hospital department, let alone in other hospitals. Indeed, defendant law firms, including those on the panel for NHSR, have questioned whether clinicians receive direct feedback from trusts to institute lessons learned from civil litigation. The issue is not merely one of perception but reality. NHSR commissioned a study into the common themes arising from mental health claims. That study, Learning from Suicide Claims, published in 2018, highlighted that investigations in that sector were of low quality and generally based on a root cause analysis model, which did not lead to an understanding of why incidents occurred.

Increased NHS resources

A recommendation proposed by several defendant and claimant firms alike is increased resources to enable NHS trusts to manage their complaints processes better.

Addressing the Health and Social Care Committee on 16 November 2021, Sir Robert Francis QC advised that we need to look again at how incidents are investigated. Whilst the Healthcare Safety Investigation Branch (HSIB) cannot investigate every incident, its techniques should be widespread. An expansion in the resourcing and remit of HSIB to enable it to investigate incidents where there is a significant or life-changing injury would also be welcomed.

One proposal to promote a learning culture within the NHS is that all adverse incidents be investigated in an external setting by external investigators from another trust. Like investigations conducted by HSIB, this would enable investigators to feel comfortable analysing the actions of those involved resulting in more informed and, where necessary, robust decisions.

Crucially, findings from investigations should then be disseminated to all frontline clinical staff in a structured format, which does not just filter into the highest-level doctors and managers.   Any significant findings should be disseminated wider, for instance, through regular training to relevant staff at other hospitals. We only need to look to other sectors that have prioritised learning to understand how this can be achieved. In aviation, pilots study incidents and near misses routinely. Reports are widely published with the aim of promulgating systemic changes, where required.

Among our recommendations was that healthcare providers should routinely write to patients who have experienced serious adverse outcomes to explain the measures put in place to prevent the same mistakes from occurring again. Claimants (and/or their families) would seek comfort from this, and it would demonstrate that lessons had been learned.

Improved patient safety leading to a reduced rate of clinical negligence claims requires a well-funded NHS. Through this process of looking at reform, it must be acknowledged that access to justice for those victims of clinical negligence must not be fettered by a government failing to understand the reality of clinical negligence litigation. Litigation, for a victim or their families, is never an easy or immediate choice, but their only hope of securing funding for their needs.

You can read Stewarts’ full response to the consultation here and details of all the responses here.

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