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2 February 2022

Government publishes proposals for NHS litigation reform

The Minister for Patient Safety has announced plans to lower the cost of clinical negligence litigation and bring about quicker resolutions.

By Zoë Grünewald

On Monday, as part of the launch of a consultation to “tackle disproportionate legal fees for lower-value clinical negligence claims”, the government announced that a cap on lawyers’ fees for claims of clinical negligence against the NHS could be introduced.

As well as the new cap ensuring that legal costs are proportionate and fair for the complainant, the announcement also proposed that patients will be prioritised with a new streamlined process to secure faster resolutions, and that the changes could save the NHS half a billion pounds over the next ten years

Yesterday, the Health and Social Care Committee heard from Jill Edwards, a lived experience witness whose daughter, Kirsty, was born with a brain injury and cerebral palsy following a traumatic labour, and the Minister for Patient Safety, Maria Caulfield.  

Edwards told the committee how she was led to believe her daughter’s condition was “her fault”, and it was only when she changed GPs that she learned that in this case, the cerebral palsy had been caused by a lack of oxygen due to mistakes made by NHS staff during her labour. The NHS trust in question even went so far as to imply that the cause of the condition may have been genetic. “I asked questions, if I went on to have any more children, would that happen to them… When I asked that question to [the original NHS trust] they said they couldn’t guarantee that that wouldn’t happen,” said Edwards.

Though the case was historic, as the chair of the committee, Jeremy Hunt MP, set out in his opening remarks, “it took a protracted legal process and 24 years [for Edwards] to finally receive compensation”.

The Association of Personal Injury Lawyers (APIL) had previously submitted evidence to the Health and Social Care Committee with regards to litigation reform stating that “the current approach to patient safety has failed”. They explained that the current cost of NHS Resolution, the NHS dispute service, was 1.5 per cent of the overall NHS England budget for the year, and that the process does not “do enough to encourage lessons to be learned”.

When questioned about the current state of patient safety and litigation, Caulfield pointed to a number of reforms that had already been implemented since Edward’s case. This included an early notification scheme, which is actively tracking incidents in NHS trusts, a “duty of candour” for NHS staff, safeguarding for whistle-blowing staff, and the creation of the Care Quality Commission, which inspects institutions if it is concerned about practices.

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However, Caulfield also admitted that the government was concerned about the relative cost per capita of the English clinical litigation process in comparison with other countries with similar systems, and that the department for Health and Social Care was looking into why that might be the case. When Hunt asked Caulfield to provide the committee with the findings of this analysis within a month, Caulfield explained it might not be possible.

Hunt called Caulfield’s response “disturbing” and “unacceptable”, and questioned whether the government was really making this work a priority. “I’m going to have to challenge you because [clinical negligence] has cost the NHS £2.2bn last year and £8.7bn in additional liability… It’s totally unacceptable for you to tell me you can’t tell us the answer to this in a month.”

Caulfield called the launch of the consultation a “small step but an important one to show we are committed to this”. The consultation itself states that the proposed actions would “could save £454m over the first ten years”. “As the vast majority of clinical negligence claims relate to NHS care, this represents a significant annual saving to the NHS budget. By achieving faster resolutions at lower cost, we would save money that could otherwise have been spent on delivering and improving vital NHS frontline services.”

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