Department of Health publishes plans to cap costs in clinical negligence cases
The long-awaited consultation on capping costs in clinical negligence cases in England and Wales was finally published on 30th January. The deadline for responses is 1st May.
AvMA has strong concerns about the proposals, which we feel lack compassion and understanding of the plight of people affected by clinical negligence and would harm patient safety as well as access to justice.
The core proposal is to impose a cap on the amount of legal costs that can be recovered in claims with a financial value of £25,000 or below. It is argued in justification that currently many claims incur disproportionately high legal costs compared to the amount of damages (compensation) paid to the claimant.
It is indeed true that legal costs are often higher than the damages in these kinds of cases. However, that is often only because the case has been unreasonably defended and settlement delayed by the defence side.
In the rare event that a claimant solicitor does currently submit unreasonable costs, the court can and does refuse them. The NHS Litigation Authority can, quite rightly, challenge legal costs if they think they are unreasonable but the vast majority are fair and go unchallenged.
To state the obvious, as these costs are only incurred if the case is settled in favour of the claimant, both the financial and far greater human cost can be avoided by improving patient safety and avoiding the errors in the first place.
However, even when an error occurs and there is a claim, the vast majority of legal costs can be avoided if the incident is investigated properly and liability admitted.
Instead of concentrating on the root causes of the high cost of clinical negligence claims, which is often the defendant behaviour, the Department intends to impose an arbitrary cap on what costs claimant solicitors can recover – even if the claim is denied and delayed unreasonably.
AvMA believes the implications of these proposals are that people with lower monetary value claims, including fatal claims and elderly people’s claims where the monetary value of the damages is often low, will find it much harder to find a solicitor to fight their case.
These cases are just as serious and complex as ‘higher value’ claims, and take just as much work. If there is not an early admission of liability, solicitors would simply not be able to afford to take on many of these cases.
Furthermore, as ordinary people would often not be able to challenge denials of liability, lessons which are currently learned from such cases will not be learned in the future, making healthcare less safe for all of us. An unintended consequence of the proposals would be to encourage a ‘deny and defend’ culture in the NHS.
AvMA chief executive Peter Walsh said:
“This should not just be about the lawyers and saving the DH money. We need to think about the people affected by negligent treatment and their ability to access justice and accountability, and about the effect on patient safety of people not being able to challenge the NHS. We are all for saving the NHS money but this is not a fair or reasonable way of doing that.”
We will be issuing a fuller briefing soon, and would urge everyone who shares our concerns to respond to the consultation.