Comment

18.04.18

Setting the reform agenda

Source: NHE March/April 2018

In 2017, the National Audit Office (NAO) said the government needs to take a stronger and more integrated approach to rein in the cost of clinical negligence claims. The MDU’s professional services director, Dr Matthew Lee, looks at what progress has been made since.

There is a glimmer of hope at the start of 2018 that the government is seriously considering whether it can take more radical steps to address one of the greatest threats to NHS funding.

The cost of complying with an outdated and flawed 1948 law may not feature in the headlines as much as staffing numbers or spikes in patient demand, but there is a growing recognition of the unsustainable burden it places on the cost of negligence claims and on already-stretched NHS funds, which could otherwise be spent on patient care.

Last year, NHS Resolution revealed it had spent a record £1.7bn on negligence claims against NHS hospital trusts in England – double the amount paid in 2010-11. The NHS estimated total claims liabilities at £65.1bn in 2017-18, up from £56.4bn the previous year.

But the tide may be turning. In the last 12 months there have been positive developments in a number of areas.

Clinical negligence law

The Department of Health and Social Care and the Ministry of Justice have convened a working group to look at the options for managing the cost of clinical negligence to the NHS. This follows criticism from both the NAO and the Commons Public Accounts Committee which recommended “the department, the Ministry of Justice, and NHS Resolution must take urgent and coordinated action to address the rising costs of clinical negligence” and report back by April 2018.

One of the topics on the table is the repeal of S2(4) of the Law Reform (Personal Injuries) Act 1948, which still requires all clinical negligence defendants to fund compensation on the basis it will be used for private, not NHS care, even though there is no guarantee that is how the money will be spent. The MDU has long campaigned for this legal change.

The parliamentary under-secretary for health and social care, Lord O’Shaughnessy, said the fact that this section of law still applies “is an issue, not least because when that Act was brought in, the NHS was a very different creature and did not offer the extensive range of care that it does now.”

Legal costs

Another move towards tackling negligence costs came in February, when a Civil Justice Council working group was asked to consider fixing legal fees in order to control claimants’ lawyers’ costs. For example, the MDU recently paid compensation to a patient of £30,000 and claimant legal fees of £52,000. Fixed legal costs will only make a material difference if they apply to claims settled up to £250,000 and not £25,000 as has been proposed. At the MDU we will include submissions on this in our evidence to the working group.

Feet to the fire

The government also plans to introduce a state-backed indemnity scheme to protect GPs who currently have to pay their own indemnity, which has become unaffordable. These measures demonstrate welcome recognition among policymakers that the spiralling cost of negligence claims is no longer sustainable.

However, the MDU has been calling for root and branch legal reform for so long that we cannot be satisfied with good intentions. Until there is concerted action to make workable reforms a reality, we will continue to hold the government’s feet to the fire.

 

FOR MORE INFORMATION
To find out about the MDU’s Fair Compensation Campaign and other proposed legal reforms, visit:
W: www.themdu.com/about-mdu/fair-compensation

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