Last year the NHS paid out nearly £800 million in damages and costs for clinical negligence claims. Although part of an upward trend, it was not an exceptional year. In fact, some £15 billion is held in reserve against current potential liabilities: that is, existing claims or those which are anticipated but where no payment has yet been made. Even in a world inured by the financial crash to the mention of astronomical figures, these are significant sums of money.
We should, therefore, all be interested in the effect that the coalition’s radical restructuring of the NHS is likely to have on the incidence of clinical negligence litigation. Thus far, however, the focus has been elsewhere. Unfortunately, both theory and experience say that there is much in these proposals which should concern us.
Whatever the sophistry of its proponents, a scheme in which of the provision of clinical care is outsourced to “any willing provider’ can, in reality, mean only one thing: that the potential provider of that care will primarily be judged not on how good that care will be but on how cheaply it will be given. Even leaving aside the additional pressures on costs which apply uniquely to private healthcare organisations (the generation of profit and the payment of dividends to its shareholders), the need to undercut its competitors in the NHS will inevitably impact on their primary item of expenditure: their staff. Fewer doctors and fewer nurses will have to work longer shifts: in other words, the very environment in which mistakes are most likely to happen. Good news for the lawyers: less so for the patients and for the taxpayer who has to foot the bill when a claim is made.
If it were necessary to test that theory against experience, one would need to look no further than the provision of out of hours GP care. Until April 2004, this service was provided in-house by Primary Care Trusts and/or GP practices. Since then, it has been possible for this to be out-sourced to independent commercial providers (a concept which should sound familiar to those examining the current NHS proposals).
In the event, such concern was generated by the succession of adverse events which followed that change that in June 2009 — and prompted by the tragic death of a patient in February 2008 after he was administered a gross overdose of diamorphine by a locum doctor from Germany — the Care Quality Commission began an investigation into the provision of out-of-hours primary care services. Its interim statement on this investigation, in turn, prompted the Department of Health to commission its own inquiry. That report, published in June 2010, should have made uncomfortable reading for the evangelical proponents of the Coalition’s plans. There is no indication, however, that anyone, from Mr. Lansley down, has ever read it — or, indeed, seen any of the countless stories in the media about the failures of out of hours care in the years since 2004.
I am a clinical negligence barrister. According to the popular stereotype of the lawyer, I should be willing the Coalition’s bill to be passed. I am, however, not only a lawyer: I am a taxpayer and a human being and I have seen too many tragic accidents and appeared at too many inquests not to implore the government to think again.
These proposals are patently driven by commercial imperatives rather than by consideration of patient wellbeing. Even on those narrow terms, and ignoring their human cost, they will not succeed if any money saved on the provision of care is simply spent on compensation for those who suffer as a result.
John Whitting is a QC and member of the Labour Party.