Health and Social Care Committee inquiry: NHS litigation reform

Published: 18 Nov 2021

AvMA has submitted evidence to the Health and Social Care Committee inquiry into NHS Litigation Reform. AvMA’s submission can be found here. AvMA’s chief executive is also due to give oral evidence before the committee on 11th January.

The Committee is naturally very concerned about the large financial cost of clinical negligence to the NHS, as indeed AvMA and other stakeholders are. However, AvMA points out that whilst the numbers are large due to the sheer size of the NHS and the number of patients it treats, the costs as a percentage of budget compare favourably with many industries.

That said, the simple fact is that by definition, clinical negligence cases are avoidable and cause immeasurable human agony. Yet we continue to see similar mistakes being repeated; expenditure on the NHS that is lower than what many countries spend on health; and under staffing of NHS services. In addition to that, unnecessary extra costs are incurred by not investigating cases well, identifying when there is fault and offering to compensate people fairly without the need for compensation.

All too often, cases are defended for too long before being settled, incurring unnecessary legal costs. The ‘deny and defend’ culture is not entirely dead. In figures provided to Parliament, it has been revealed that out of 3,303 clinical negligence claims where proceedings were issued in England in 2019/20, over 80% (2,699) settled in favour of the claimant. This means that opportunities to settle these cases earlier have been missed, adding greatly to the legal costs.

AvMA points out that measures such as ‘fixed recoverable costs’ in clinical negligence cases could severely reduce not only injured patients or their loved ones’ access to justice, but would also take away an incentive for the NHS to learn and reduce its capacity to learn from errors, as these are often only recognised as such by virtue of people being able to challenge denials through litigation.

AvMA is and always has been open to discussing improvements to and alternatives to litigation, but argues that reducing access to justice for the very people that the NHS has harmed is incompatible with a ‘just culture’, and a false economy