Are the stars aligning for clinical negligence cost reform?

Joanne Easterbrook, Senior Partner, Bevan Brittan

The publication of  the Public Accounts Committee (PAC) report on managing the costs of clinical negligence represents an important moment in this difficult and ongoing area. The PAC have brought the issue firmly onto their watch and it is clear that they are determined to see action, with various bodies required to supply progress reports at specific points. Are the stars aligning for significant reform?

Joined-up approach

The demand by the PAC for a cross-government approach to managing the costs of clinical negligence claims is both warranted and welcome; it is recognised that NHS Resolution have identified the drivers and commenced work to control those factors within their direct control to encourage early resolution at a more modest cost ( e.g. alternative dispute resolution (ADR )and in particular mediation). However, factors such as the increase in the discount rate, the legal funding regime and the sheer complexity of providing modern healthcare in an environment of financial challenge cannot be managed by public bodies acting in isolation.

Candour and openness

The PAC cited a "prevailing attitude of defensiveness in the NHS when things go wrong". Some may agree, but NHS Resolution has long recognised the power of candour and the value of an explanation and apology. Aside from being the "right thing" to do when things go wrong, this approach can help reduce the likelihood of litigation where what the patient and their family want is to understand what has happened and avoid its repetition.  In this NHS Resolution were ahead of the curve – having been actively encouraging greater openness for two decades now.

Legal reform & costs

Both the PAC and the Ministry of Justice (MOJ) agreed that the best chance of reducing legal costs lay in developing cross-government initiatives. The MOJ appeared also to accept that the government could have predicted the impact that legal costs reforms were going to have on the number of claims and claimant legal costs, but indicated that it had now taken action to address some of those issues. For example, it was accepted that ADR had not been working as effectively as it could and consideration was accordingly being given to compulsory mediation as part of the civil process. A commitment to fixed recoverable costs was also restated and we note that both of those initiatives are fully supported by NHS Resolution.

In particular, the recommendation to review whether current legislation remains adequate with a requirement to report back to the Committee by April 2018 is important. Reform of the 1948 Law Reform (Misc Provisions) Act 1948 could make a very significant difference to the calculation of damages. The Committee acknowledged that the NHS is funded by tax payers so it is not “free” - but damages are calculated on the basis of private health care rather than NHS costs. Affordability does not sit easily with the principle of full compensation but it is right to explore this area as repeal of this provision could ensure claimants receive appropriate care paid for by the public purse at an appropriate rate.

Safety and Learning

NHS Resolution cannot require the NHS to prevent future harm but it has taken steps to incentivise it through pricing and to support the reduction of harm through learning via the establishment of its Safety & Learning team. It has increasingly engaged with other health bodies to provide data and analysis of claims – most notably and as mentioned by Helen Vernon through their report on 5 years of cerebral palsy claims. It is clear that they have a continuing commitment to supporting the wider NHS to deliver safer care.

Investigations

There is also a consensus around the need for earlier and better investigations. We welcome the extension of the role of Healthcare Safety Investigation Branch announced recently. This will assist in informing the parties where an admission needs to be made and in taking action to prevent the event recurring although independent investigation with experts instructed to address the criteria for negligence will still have its place.

The best opportunity in decades

The drive for cross-departmental initiatives to provide safer care, to be candid, to investigate more thoroughly and to provide a resolution process which is rapid, proportionate in cost and affordable provides the best opportunity in decades to manage the cost of claims. In the meantime, we welcome the opportunity to work with NHS Resolution to support their current and future initiatives.

If you would like to discuss this topic in more detail please contact Joanne Easterbrook.