Recommendation 6

Clinical negligence claims are settled on the basis of costs of care in the private sector and yet there is nothing to stop the claimant using the NHS or publicly funded social care in the future, potentially inflating the costs of claims. It is not clear the extent to which the taxpayer is paying twice for clinical negligence – once through compensation for injury 6 and then again by providing subsequent health and social care. A law from 1948 states that damages must be calculated on the presumption that care will be provided by the private sector and not the NHS or local government. NHS Resolution identified this as a major contributory factor to the increasing cost of very high-value cases (£1 million or more), where about 60% of the damages relate to future care. Although claimants can be asked to declare in court if they plan to use the NHS for treatment, this rarely happens in practice and cannot be mandated. NHS Resolution is unable to ask successful claimants for information on how they spend their award or whether they subsequently access state funded services to manage their condition. Local authorities are also not able to consider clinical negligence compensation awards when assessing eligibility for publicly funded social care. recommendation The Department should develop, within six months, proper estimates of the impact of assuming health and social care for clinical negligence victims will be provided exclusively by the private sector. It should by the same deadline set out additional measures—including any requiring changes to legislation—which it judges would effectively guard against the risk of paying twice for the care of those it has harmed and an indicative timeline for their potential implementation. 7 1 The rising costs of clinical negligence Introduction