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We should be able to sue the NHS

This culture of secrecy and gagging orders needs to be changed.

Photograph: Getty Images

There are few more divisive political topics than the NHS. Those interfering with it risk the wrath of keyboard warriors, campaigners, journalists and politicians.

At the extremes, there are views that we are either dangerously nudging towards privatisation, or sleep walking into low quality "socialised" health provision that is far below the average standard of care within the developed world.

But regardless of which side of the political divide you sit on, it is hard to deny that the NHS needs to up its game.

However at the top of both camps’ hitlist are lawyers, it seems. “Ambulance chasers” lining their pockets on tax payers’ money, fleecing the NHS for every last penny when things go wrong. Because of this it seems anyone bringing a case against the NHS feels guilty for doing so, or, worse, treacherous.

But should that be the case?  No one else has the political will to change the NHS for the better. One could argue we are in a catch 22 situation where a decade of Labour "investment" is followed by a few more years of partial privatisation and Tory tinkering. None of which confronts the main problems faced by the NHS: massive institutional failings.

As a lawyer who has experienced the very best of NHS care when I severed my spinal cord during a motorcycle accident, it saddens me that now the NHS is stuck between a rock and a hard place, where politicians seem unable to tackle the institutions’ problems head on.

Alongside waste and poor distribution of resources, another major failing is at the frontline. While the NHS is staffed by compassionate, caring and committed workers, there are huge understaffing problems and many are locked into a system that breeds institutional negligence and huge, catastrophic mistakes. That’s why lawyers step in - as an important check and balance to try and raise standards of care within the NHS by investigating wrong doing, highlighting malpractice, negligence and failed systems.

This is not a small issue. Data shows that NHS negligence claims are on the increase - by 20 per cent year-on-year and 80 per cent since 2008. That’s a monumental £19bn bill – one fifth of the NHS budget. This is to service claims made by over 16,000 patients and families of those bereaved. These are voters of both political persuasions – left and right.

So are these costs purely to line the pockets of ambulance chasing scum or is this money compensation for patients and families who have suffered horrendous, life changing, often preventable incidents?

Month on month at Fletchers Solicitors, we are contacted about hundreds of new clinical negligence cases. These are terrible cases of people who have been denied basic care, such as food or water, suffered catastrophic injuries from simple surgical errors, right through to repeated and systematic failure to diagnose symptoms of preventable yet life-threatening illnesses.

While the individual stories are of course tragic the cost to the exchequer is also appalling. The fact of the matter is that the bulk of the £19bn cost could be dramatically reduced if the NHS’ culture of secrecy and gagging orders were changed in favour of a more open and honest approach to dealing with negligence investigations.

The majority of costs are not for compensation but proportional to the time taken to investigate the facts of the case and establish guilt. Claims against the NHS take longer than any other industry, and accrue more costs as a result.  Often cases take three times as long when most private sector businesses would have admitted guilt at a much earlier stage. An accountable NHS could shave tens of billions of its legal bill.

So should we sue the NHS? In a perfect world the medical negligence marketplace would be small and compensation would be given to people who deserved it.

Today there is now a large legal market which ultimately feeds off a sometimes disorganised and chaotic NHS. It’s our view, however, that the most important consideration for legal action against the NHS is that families whose lives have been destroyed by failings can in some way rebuild them again using their compensation.  Yes, it’s controversial but we’ve been very open and honest about the state of the NHS and our role in it. In fact, we are running a campaign to determine opinion about litigation, and we’re starting a debate to gauge the public mood around whether suing the NHS is ethical.

Ed Fletcher is the chief executive of Fletchers Solicitors

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