NHS plans will fuel culture of ‘deny and defend’

 

PETER WALSH
CHIEF EXECUTIVE, ACTION AGAINST MEDICAL ACCIDENTS
Published in the Telegraph, 28 July 2017

 

At first glance the Government’s plans to impose ‘fixed recoverable costs’ on clinical negligence claims (a cap on the amount of legal costs lawyers can recover when they win a case for their client) may seem attractive. Few would shed a tear over lawyers earning less money! However, look deeper and it becomes clear that this plan is at best ill-conceived, ignores the root causes of high costs and would have serious unintended consequences.

 

At worst this is a crude and heartless measure to save money at the expense, ultimately, not of lawyers, but of some of the most vulnerable people in society, whose lives have been ruined by perfectly avoidable lapses in patient safety. Stillbirths and neonatal deaths, older people’s deaths and mental health cases are the kinds of cases which may no longer be feasible if the plan goes ahead. That’s why nine patients’ charities wrote to the Telegraph in May calling for it to be dropped.

 

The Department of Health argues that too much money is being spent on the legal costs element of claims. That much is true, but no proper analysis has been done to understand why costs are so high. The simple fact is that the incidents themselves could and should be avoided, but even with those that slip through the net, litigation could be avoided altogether if good investigations were carried out and the NHS recognised its failings and offered to resolve cases earlier. Legal costs only become an issue if the NHS defends the case but is forced ultimately to settle it.

 

Far too many cases are defended unreasonably and for too long, adding unnecessary costs as well as further misery for the victims. However, the Department of Health take no account of the role of its own defence lawyers in creating the problem. Nor has it even considered reviewing the disastrous decision to remove legal aid from the vast majority of clinical negligence cases. Even the NHS Litigation Authority (now called NHS Resolution) agreed that legal aid was a more cost effective way of funding such claims than the ‘no-win no-fee’ regime that the Government has forced upon would-be claimants and the NHS.

 

The effect of imposing fixed costs on clinical negligence claims – even those below £25,000 in compensation – would be to deny access to justice to many vulnerable and deserving people in some of the most serious cases. 80% of clinical negligence claims fall into the below £25,000 category. For example, even an avoidable stillbirth caused by negligence is often worth less than £25,000 in compensation. The courts award compensation based on financial loss or care needs, not on the seriousness of the mistake. The same applies to other serious cases such as the avoidable death of older people. These cases can be just as complex and difficult to litigate as cases with far higher payouts. If a cap is placed on how much of their costs claimant lawyers can recover, no matter how long or how unreasonably the case is defended, it simply will not be feasible for them to take on many of these cases. Many of the families who lost elderly loved ones or babies through negligence or neglect such as at the infamous Mid Staffordshire NHS Foundation Trust or Morecambe Bay NHS Foundation Trust would not have been able to get justice under the fixed costs proposals. Even if it were possible to take on such a case and it was successful, the plan would prevent lawyers from reclaiming their costs from the losing party, meaning that the patient or their family would end up having to pay for legal costs out of their compensation, possibly eating up most of it.

 

However, this is not just an access to justice issue. These proposals would incentivise a ‘deny and defend’ culture, with defendant lawyers being safe in the knowledge that if they defend a ‘low value’ claim, the chances are that no lawyer will be prepared to fight the case on behalf of the patient/family. This would lead to massive lost opportunities to learn from mistakes. Bear in mind that all the cases involving high legal costs are those where the NHS has defended them unsuccessfully, usually because they do not recognize that they were at fault until the claimant forces the issue and introduces compelling evidence. The absence of learning from these cases would make your local hospital and mine less safe. Take stillbirths and neonatal deaths as an example. Around 15 babies die every day in the UK – one of the worst rates in the developed world.

 

Jeremy Hunt has shown a genuine passion for improving patient safety and shown great empathy with victims at places like Mid Staffs and Morecambe Bay . He has recognised that transparency and fairness are key components of a just culture, which is vital for improving patient safety. He was the first ever Health Secretary to accept a statutory duty of candour. However, denying victims the ability to challenge NHS denials and the NHS the opportunity to learn from such cases would undo much of the progress that has been made.