Source · Select Committees · Public Accounts Committee
Recommendation 25
25
Deferred
Presumption of private care in clinical negligence awards leads to double public payments.
Conclusion
The government may effectively be paying twice in some instances of clinical negligence, once through the compensation given to claimants and once again through providing NHS treatment and publicly funded social care. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provides that defendants who pay for the future healthcare and treatment of damaged patients must do so on the presumption that such care will be provided by the private sector and not the NHS. Local authorities are also not able to consider clinical negligence compensation awards when assessing eligibility for state social care.64 NHS Resolution identified the assumption of private care as a major contributory factor to the increasing costs of very high-value cases (£1 million or more).65 It estimates that about 60% of very high-value settlements for damage related to the cost of providing future care.66
Government Response Summary
The government is keeping the issue of double recovery under consideration and will write to the Committee by Autumn 2026 on the case for change, after David Lock KC has focused on this in his work.
Government Response
Deferred
HM Government
Deferred
The government is keeping this under consideration. Target implementation date: to be advised. 6.2 The existing system requires judges to disregard the availability of NHS services when assessing damages for personal injury. This means claimants are able to claim damages for future care costs (for example, including private care) and then go on to use state-funded NHS and social care services too. Double Recovery, or the instance of the state paying twice, once in terms of compensation calculated on the basis of private care, and again if the recipient of the compensation then goes on to use state-funded care, is a significant concern and an area that David Lock KC will focus on in his work. 6.3 As the NAO’s Costs of clinical negligence report in October described, there is “no estimate of the extent to which clinical negligence claimants go on to use publicly funded health or social care services for their conditions, and little is known about how damages are used by claimants.” Working with David Lock KC, DHSC has sought to identify potential data sources in order to make an informed calculation and continues to do so. However, data in this area is limited, partly because there is no legal obligation for a claimant to notify the relevant service providers of their past compensation payments. DHSC is, therefore, unable to commit to the timeframe specified in this recommendation to provide estimates of the scale of double recovery. 6.4 The government will write to the Committee by this Autumn 2026 on the case for change and provide additional information on the department’s intentions, including Double Recovery.