We should be able to sue the NHS

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

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

More information on the campaign can be found via its Facebook page.

 
Photograph: Getty Images

Ed Fletcher is the chief executive of Fletchers Solicitors

Photo: Getty Images
Show Hide image

What's going on in Northern Ireland?

Power-sharing and devolved rule are under threat. What's going on? Ciara Dunne explains. 

The UUP will formalise their decision to withdraw from the Northern Ireland executive on Saturday. The DUP then announced that it may consider voting to remove Sinn Fein from the executive effectively ending or at least suspending devolution. This is due to a statement by PSNI chief constable George Hamilton stating that former IRA member Kevin McGuigan may have been murdered by people connected to the Provisional IRA (PIRA). However Hamilton also stressed that there was no evidence to prove that the murder occurred due to PIRA orders and there are claims that it was a personal vendett.

The UUP declaring that they will withdraw from Westminster is not particularly destructive. They only have one minister and their vote share has been steadily declining since they signed the Good Friday Agreement to the benefit of the DUP. By acting so dramatically, they run the risk of this seeming like the death rattle of a party trying to remain relevant in a world so different from its heyday rather than a principled stand to protect the fundamentals of the Good Friday Agreement.

Nesbitt voiced disgust that the IRA was still in existence. However the IRA is not one group and many of its splinter groups such as the Continuity IRA (CIRA) and Real IRA (RIRA) didn’t sign up to the Good Friday Agreement and have been active since it. They were not the only paramilitary groups that did not sign up, fragments of extremism have existed since the PIRA decommissioned and it seems likely that they incorporated those who had been PIRA members who were disillusioned by the agreement. Bertie Ahern, former Taoiseach and Good Friday Agreement negotiator, explained while the PIRA had to decommission as part of the agreement, for various reasons it was allowed to exist in a non-armed state. News of its existence shouldn’t come as a shock to the only major unionist party that engaged in Good Friday Agreement negotiations. If the PIRA were proved to be armed and active then this response would be understandable but that is not the case.

What this stand does however give the UUP is a unique selling point compared to their rivals the DUP and it can somewhat tackle the perception some have that the UUP betrayed the unionist community when it agreed to work with Sinn Féin in government.

The DUP has been less drastic. Although they have stated that they would consider pulling out of government, they have described it as temporary suspension of government rather than a total breakdown of trust. Jeffrey Donaldson, a DUP MP, said that if they are to continue to power share with Sinn Féin, they must ensure the PIRA issue dealt with ‘in terms that gives everyone the reassurance that this isn’t going to happen again’. This is a reasonable request and something Sinn Féin must do. They should be unwavering in their condemnation of any paramilitary organisations. However so far they haven’t done otherwise, several senior figures have denied that the PIRA have rearmed. Pearse Doherty, a prominent Sinn Féin TD, insisted that when it came to the IRA “the war is over, they’re not coming back”.

The best way to tackle paramilitaries is to tackle the reasons people joined them. This can be done not by threatening to withdraw from the government but standing together against sectarianism. Parties must ensure that there is a functioning government that works for the good of everyone and gives people a genuine stake in society. It is important that representatives of both communities condemn paramilitaries, in actions as well as words. All parties will soon have the opportunity to move away from old associations, as the old guard age and move aside and the younger members who are untainted by such associations, take charge of the party.

However, it is vital that parties take a considered stance in anything controversial for this to work. In this case, it is not yet certain whether the connections are historical or current. Garda Commissioner Noirin O'Sullivan has stated she has no reason to believe that the PIRA are active in the military sense. Bertie Ahern pointed out that it is possible that ‘these atrocities are being done [by those] who might have been on the inside but are now long since on the outside?’ Political posturing could have terrible consequences for the Good Friday Agreement, especially if results in a party with a large electoral mandate being removed from government when there is no proof it has broken the agreement.

If the UUP and the DUP are truly concerned, a more constructive reaction is to push for the reintroduction of the Independent Monitoring Commission (IMC). The IMC monitored paramilitary activity from 2004 to 2011 and its final report stated that ‘transition from conflict is a long slow process’. This latest incident shows this is true and it is likely that the IMC was disbanded too soon. Reconvening the IMC would offer a way to monitor paramilitary activity and to find patterns and evidence rather than allowing a single incident to destroy progress. If reconvened however it should address the issues that resulted in Sinn Féin’s criticism of the body. A more balanced panel, one agreed by all parties, would address this, the previous one was described as three spooks and a lord, but would still add value to the peace process.

If political parties pull out of the power sharing agreement over an incident that the police have not yet connecting to a sophisticated paramilitary organisation with political connections, they are handing extremism a victory while taking democratic choice away from the people of Northern Ireland. The majority of people in Northern Ireland have been clear, both in referendum and in their actions, they want peace and stability. If the parties of Northern Ireland don’t fight to protect this then they are betraying everyone who believed in the Good Friday Agreement and reconciliation.