The Committee has launched a new inquiry to examine the case for the reform of NHS litigation against a background of a significant increase in costs, and concerns that the clinical negligence process fails to do enough to encourage lessons being learnt which promote future patient safety. Read the call for evidence for more detail …
| Title | HC No. | Published | Items | Response |
|---|---|---|---|---|
| Thirteenth Report - NHS litigation reform | HC 740 | 28 Apr 2022 | 34 | Overdue |
In 2005 the New Zealand Parliament made a conscious choice to alter the legislation underpinning their system of clinical negligence because they wanted to change from a punitive system to one that would encourage the co-operation of hospitals and medical professionals. This is the lesson we need to learn in …
Clinical negligence cannot and does not inform or disseminate learning or systematically contribute to patient safety improvements. It is not its purpose and too much information is filtered out at an early stage to ever make this a realistic prospect. Demonstrating individual fault is fundamental if compensation is to be …
Some claimant organisations said the screening process, as carried out by specialist claimant firms, prevents a significant cost that NHS Resolution would otherwise incur. Claimant costs, however, account for a fifth of all cash payments associated with clinical negligence and witnesses highlighted that law firms gravitate towards higher value cases, …
The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning. We recommend that when a patient is harmed, they or their family should be able to approach an independent administrative body which would investigate …
We recognise that our recommendations would radically change the principles which underpin the way injured patients are compensated and the Bar Council said that to introduce a new statutory administrative scheme would be “a project of phenomenal ambition.” Given the scale of the undertaking, and the cultural change we are …
As it becomes embedded within the framework of the NHS, we recommend that, in the first instance, the new administrative patient compensation system should be focused on obstetric cases which align with the Each Baby Counts criteria. Once established, and having proven its value, the independent administrative compensation system should …
The Government is creating a new Strategic Health Authority (SHA) to investigate serious incidents and improve safety in maternity care. We believe that reconstituting the SHA to investigate claims, establish the causes of harm and determine eligibility for compensation would be an efficient way for the Government to implement our …
We are concerned only with the dynamics of the legal market in so much as they affect the ability of injured patients and their families to access compensation, and the system to learn and improve safety. However, we note that those that gain most from the present system are its …
The advantage of an administrative system is that criteria can be established to remove uncertainty and turn what otherwise would be an adversarial process into one concerned only with the facts of the case. Compensation should be based on agreement that correct procedures were not followed and the system failed …
Establishing the precise criteria for an administrative patient injury compensation system based on system error is a complex task. We have taken evidence from various successful international schemes that each use a different threshold and we do not seek to be prescriptive over which threshold should be used in England. …
In our July 2021 report examining the safety of maternity services, we recommended that the Government remove the disregard of NHS care in the award of damages. We have seen no evidence to change our recommendation. To argue that patients injured by errors in their NHS care would not want …
There is no reason why an administrative scheme should be any less generous in the compensation it awards than the courts, not least because damages would not be top sliced to meet claimant legal costs. Within the administrative compensation system, no caps would be applied to the awards, but a …
Compensation should be based on the additional costs necessary to top up care available through the NHS and social care system, rather than the current assumption that all care will be provided privately. Whilst we recognise that additional care costs are difficult to calculate, we recommend that they should be …
The assessment of parental earnings in the calculation of damages for children under 18 years of age is unfair. It undermines the principle that damages should be calculated to meet a person’s needs and contradicts the principle of equality that sits at the heart of our health system. We recommend …
There is strong evidence that an administrative compensation scheme would provide better value for money to the taxpayer than clinical negligence litigation. There is significant potential to strip away the vast legal costs which account for over a quarter of all that is paid and introduce a system which is …
Clinical negligence litigation stands in stark contrast to best practice in terms of patient safety. Gains are made by careful system-wide analysis rather than the search for individual blame. The creation of the Health Services Safety Investigations Body as a statutory body which will undertake no-blame safe space investigations maps …
It is not within the scope of clinical negligence litigation to encourage the culture, or support the mechanisms, to identify learning from serious incidents. Neither can the process of litigation disseminate learning and enhance patient safety. Moreover, the experience of those who gave evidence to our inquiry illustrated that investigations …
Aside from the substantive reform of clinical negligence litigation that we have recommended, we also believe that the investigatory system should be reformed. After any tragedy involving medical error there should be a standardised process of investigation which focuses on the overriding priority to learn from mistakes and prevent tragedies …
We further recommend that, in parallel, an investigation by an independent administrative body responsible for alternative dispute resolution should be completed and a determination on liability for compensation released to the family, the Trust and NHS Resolution. The Trust and NHS Resolution would decide whether to accept liability for a …
In the longer term, an administrative compensation system would address problems associated with inadequate investigations by undertaking inquisitorial, system- focused investigations with no examination of individual blame. This would build greater confidence amongst healthcare professionals that they could be open and forthright when contributing to investigations. However, to further support …
We recommend that information obtained by the administrative body in its investigations should not be shared with any other professional or system regulator unless it constitutes unlawful activity or identifies an immediate danger to patients. We also recommend that the administrative body should agree a memorandum of NHS litigation reform …
An independent administrative system designed in the first instance to provide compensation in birth injury cases would be much more responsive to the needs of patients and families. Without a contentious legal battle, eligibility would be established quickly and support provided to injured patients within weeks rather than years. The …
The most effective system would be one that can provide initial compensation within weeks of a claim and then be adapted to meet the individual child’s requirements as they grow and develop. We recommend that awards be made with periodical review built in so that they can become responsive to …
Although our system would be no less generous in its awards than the courts, patients would still retain the option of pursuing clinical negligence cases and seeking redress via litigation. Evidence from abroad indicates, however, that when given the choice, patients and families prefer the simpler administrative process. We believe …
Therefore, we recommend that litigation should become an option for claims covered by the administrative system only after the claimant has pursued their case through the administrative system.
We heard powerful testimony from people who have been through litigation about how they valued the support from solicitors who become their advocates and guides within the labyrinthine process. Whilst we do not doubt that there are many excellent solicitors who act in the best interests of people who have …
In the system we recommend, someone with a claim would not need intensive legal support as their claim would be evaluated inquisitorially without months or years of toil to demonstrate clinical negligence. It is also important to note that there is no guarantee that someone will find a solicitor equipped …
Settling cases without court proceedings is positive but does not necessarily mean that injured patients will not experience an adversarial, complex and expensive process. The most serious cases still take years to settle rather than weeks or months. NHS Resolution’s efforts to reduce the number of cases that reach court …
We recommend that before any court case there should be compulsory use of alternative dispute resolution mechanisms. This often happens before the start of a trial but should happen before the issuing of any court proceedings. We recommend that the Government consult on the format of alternative dispute resolution and …
It is understandable that representatives of injured patients should wish to see fault admitted and cases settled early, but the statutory framework on which clinical negligence is based makes this very difficult. Clinical negligence is focused on individual blame, therefore, it is unsurprising that within this process individual clinicians will …
NHS staff, injured patients and families need greater support in dealing with the fallout from clinical negligence cases. We recommend that every hospital should have adequate numbers of staff trained in “just culture” practices to reduce confrontation and relationship breakdown between injured patients, their relatives, and bereaved families.
We heard that there is no leeway for NHS Resolution to concede cases on any basis other than clinical negligence, but this was challenged by academic evidence we received. In response to this report, the Government should provide an explanation which addresses the evidence we have cited which shows that …
We are concerned that the Government’s proposal to introduce Fixed Recoverable Costs in clinical negligence cases below £25,000 may compromise access to justice for the poorest claimants. The Government is right to try and rein in excessive legal costs, but until the administrative scheme we are recommending is introduced in …
Once an administrative scheme is established for all clinical negligence claims the future of Qualified One-Way Costs Shifting (QOCs) in clinical negligence cases against the NHS should be considered. The Government has said the purpose of QOCs is to minimise the financial risk to claimants, but, as the administrative system …
| Date | Witnesses | |
|---|---|---|
| 1 Feb 2022 | Helen Vernon · NHS Resolution, Jill Edwards, lived experience witness, Maria Caulfield · Department of Health and Social Care, Matthew Style · Department of Health and Social Care | View ↗ |
| 11 Jan 2022 | Dr Pelle Gustafson · Swedish Patient Insurer, George Deebo · Virginia Birth-Related Neurological Injury Compensation Program, Guy Forster, Association of Personal Injury Lawyers, Lauren McGuirl · Centre for Effective Dispute Resolution, Michael Mercier, Accident Compensation Corporation, Peter Walsh, Action Against Medical Accidents, Professor Shin Ushiro · Division of Patient Safety Kyushu University Hospital, Executive board member Japan Council for Quality Health Care, Simon Hammond · NHS Resolution | View ↗ |
| 16 Nov 2021 | Dr Sonia Macleod · The Centre for Socio-Legal Studies, Joanne Hughes, Expert by experience, Scott Morrish, Expert by experience, Sir Ian Kennedy QC, Sir Robert Francis QC · HealthWatch England, Sue Beeby, Expert by experience | View ↗ |
| Date | Direction | Title |
|---|---|---|
| 20 Apr 2022 | To cttee | Letter from the Permanent Under Secretary of State for Primary Care and Patient… |