Cutting compensation for those maimed by the NHS would be ‘hideously unfair’

Peter Walsh

Peter Walsh

by Peter Walsh
Chief Executive of AvMA

February 2018

The front page of the Daily Telegraph – “Cut payouts for NHS blunders or the NHS will go bust” – is a stark reminder of how desperate our NHS is for more investment.

However, the proposals which sparked it are seriously ill-informed and mis-directed. Almost everyone would like to see the NHS funded and better staffed so that good quality and safe care can be provided. However, that is a matter for government.

Depriving people who have been harmed by clinical negligence of the justice and compensation they need and deserve is not the way to solve the NHS’s problems and would harm patient safety itself as well as being hideously unfair to the patients and families concerned.

Without the legal challenge mounted the NHS would have continued in the belief they had done nothing seriously wrong, and opportunities for learning and future prevention would be lost.

We also need to remember that avoidable harm, in fact negligent harm has been caused to these patients and the sum awarded to them is based on an assessment of their actual needs as approved by the courts. It is not some kind of windfall.

Depriving them the correct amount based on a subjective opinion of what the NHS can afford would mean they were being deprived the amount of compensation they need and would be available had they been injured by a different organisation or individual in another setting.

Why should the NHS be allowed to harm people through negligence and then not have to compensate them in the same way that the law requires from any other organisation?

Apart from preventing these errors occurring in the first place by improving patient safety, the NHS also shoots itself in the foot by allowing lawyers and defence organisations to defend claims unreasonably and rack up huge unnecessary legal costs when they could be resolved speedily, often without the need for litigation at all.

If NHS bodies investigated incidents properly and owned up to errors early this would be perfectly possible. Niall Dickson’s opinion piece and the letter to the justice minister, led by the NHS Confederation, points to the increased costs brought about by the Government adjusting the so-called discount rate.

This is not injured patients’ fault. The Government set it based on all the data and expertise available on what is fair and reasonable.

Furthermore quoting estimated NHS liabilities in the way they have without putting this in context is misleading. The NHS paid out £1.7 billion on clinical negligence last year which is a stunning amount but could be reduced hugely in the ways described above.

However the estimated liabilities of £65 billion are based on what it would cost to fully compensate every potential claim over many years. It does not add to what the NHS would be paying out each year.

No one wants to find themselves injured because of negligent medical treatment or to have to go through litigation. Litigation is a stressful and lengthy process as well as being expensive. The current system is far from perfect and better ways could be found.

Sadly, the Government did away with Legal Aid for most cases of clinical negligence a few years ago, even though the NHS Litigation Authority recognised legal aid as the most cost effective way of funding claims. Once again the Government has shot itself in the foot here.

It has also refused offers to work with patients, lawyers and others to look at the real reasons for high costs in clinical negligence and come up with solutions. Instead, they plan to simply impose a fixed costs regime which would make it impossible for many people to obtain legal representation and incentivise a deny and defend culture.

There seems to be a growing intent to make the injured patients pay – either by not being able to make a legal challenge at all, or by robbing them of the compensation they need and deserve. There is nothing “unfair” or “unbalanced” about people being properly compensated for the harm they have been caused. Access to justice is an important pillar of a decent society and we should treasure it as much as we do the NHS and the staff who work in it.

This article first appeared in the Daily Telegraph, 2 February 2018