Catherine Dixon, chief executive of the Law Society, considers the Department of Health’s proposal to fix costs in clinical negligence. Would tackling negligent NHS care be a better solution?
One Born Every Minute - not everyone’s preferred viewing, but a hit Channel 4 TV programme - captures the drama and emotion of the average maternity ward, and has proved compulsive watching for millions.
Sadly, not everyone has the opportunity to experience the joy of taking home a healthy new baby. Things go wrong in about one in every 1,000 births. In these cases, often the tragic result is a baby suffering severe brain damage. The cost in human misery is immense, as is the cost to the NHS and, as such, to the taxpayer. Multimillion-pound settlements are granted because babies who have suffered brain damage at birth often need round-the-clock care for the rest of their lives.
Last year the NHS Litigation Authority (NHSLA) spent £1,169,506,598 on clinical negligence claims. Of this, some 41% - almost half a billion pounds - was for obstetric claims, mainly paid to brain-damaged children to cover the support and adaptations they need to help them live as normal a life as possible.
But this is not the full story. At the end of March 2015 the NHSLA had £12.5 billion of known claims on its books. It also has liabilities for about the next 80 years as it pays out each year for the care costs of babies, children and adults who have been harmed by the NHS. In addition, the NHSLA (with its actuaries) has calculated the cost of claims from negligent care that have yet to be reported. All told, the total cost of known claims, costs of paying for ongoing care and the amount of claims incurred but not yet reported is a staggering £28.6 billion .
As the former CEO of the NHSLA I am all too familiar with these figures. To put them in perspective, clinical negligence provisions on the government’s balance sheet are the second highest behind the cost of nuclear decommissioning .
Given this reality, plus the fact that almost half of these costs are arising from brain-damaged baby claims, you would think that every action would be taken to stop damaging babies’ brains. If the cost runs into billions and the result is untold misery to babies and their families, isn’t it worth investing more to stop this from happening?
We already know the biggest single factor which results in clinical negligence claims for brain-damaged babies. It is failure effectively to monitor and/or respond to a change in foetal heart rate. The remedy for this is simple on the face of it,: better training and adequate staffing levels, effective use of technology, and robust processes and procedures. Of course, all this requires investment in safer NHS care, but such an outlay is nothing on the scale of the cost of life-changing claims.
However, it would seem that rather than target all efforts on reducing the number of brain-damaged babies - saving the NHS billions and stopping the indescribable misery resulting from these events - the Department of Health’s apparent response to reduce the cost of clinical negligence in the NHS is to target claimant solicitors’ costs by proposing to introduce fixed costs and cap fees to expert witnesses. Such a move would, more than likely, reduce the amount paid to specialist solicitors for representing those who have been harmed by negligent NHS care and may make it less likely that a claim could be brought.
We have yet to see the detail of what is being proposed, but it would be deeply concerning if the Department of Health’s proposals led to those who have been harmed not having access to the specialist legal advice they need. It is possible, if costs are set too low, that solicitors will be forced to stop offering services in this area as a result of being unable to recover a fair level of legal costs. If this were to be the result, it would be wholly at odds with the NHSLA’s function to pay justified claims promptly and appropriately. It is also at odds with the values of the dedicated NHSLA staff and defendant solicitors, many of whom give considerable time to support the NHS, to learn from what has gone wrong and prevent injuries to other patients.
Clearly, from the Department of Health’s point of view, introducing fixed costs - which they no doubt hope will reduce the amounts paid to claimant solicitors and possibly the number of claims brought- will go some way to tackle the financial burden of clinical negligence claims. However, it must be noted that the £291,909,829 paid in costs settled in 2014/15 include expert witness as well as barristers’ fees.
It is perhaps easy to forget when faced with balance sheets that clinical negligence claims are brought by people who have been injured through no fault of their own as a result of negligent NHS care and, as such, need specialist advice from a solicitor to help them get the compensation they are entitled to in law.
The Department of Health will fully appreciate that fixing costs too low for claims which are often complex may restrict injured patients’ ability to claim damages for often life-changing injuries. The reason is that this highly specialised work would become financially unviable for solicitors to undertake and practitioners who have invested years in becoming expert in this field would not be able to sustain their practices.
In turn, this would be likely to result in claims management companies offering services for people hoping to claim compensation and to unregulated providers moving into the clinical negligence market, resulting in great numbers of spurious and ill-conceived claims. There is also the risk that self-represented litigants would have to bring their own claims, further swamping the courts by forcing people into ‘do it yourself’ justice. Intended financial savings could prove far more costly across a range of budgets.
The Department of Health is working on the basis that fixed fees could be introduced in October 2016, subject to the outcome of a consultation later this year. The Law Society understands that the current proposal is for a scheme based on the value of damages awarded, rather than taking into account other factors that can increase the cost of any claim, such as the complexity of the case. Moreover, the proposal is that fixed fees should be applied on claims up to the value of £250,000 - which is truly shocking, as that would include claims for people who have been very seriously harmed. Compare this amount to the fixed costs for employers’ liability and public liability claims, where the costs are fixed through a portal for claims below £25,000.
For the sake of the NHS and its patients, and for all the specialist practitioners who dedicate their careers to supporting harmed patients, I would urge the department to listen very carefully to practitioners. If, after the consultation, any change is made to the costs paid to claimant solicitors, they must be set at a sustainable and fair level that enables this important work to continue for an appropriate level of return which recognises: the cost of practice; the fact that this work is highly specialised; and the importance of it to the NHS and its patients.
When I was the CEO of the NHSLA I saw inappropriately high cost claims, which are damaging to our profession and should never be condoned. But the reality is that the vast majority of costs submitted were appropriate for the work done. This is reflected in the fact that most costs are settled by the NHSLA and not taken to detailed assessment at court. So, rather than focusing on claimant solicitors’ costs, perhaps the focus should be on reducing the amount of negligent care which is harming patients in the NHS.
The Department of Health expects its consultation to run through November and December. The Law Society will be seeking members’ views ahead of the Department of Health’s consultation.
I will always be a supporter of the NHS and the dedicated people who work for it. But perhaps the time has come to address the fact that the clinical negligence bill is rising and the only way to reduce it is to invest in safer NHS care - not to stop solicitors getting paid a fair and appropriate amount for the vital work they do to help harmed patients.
 NHS Litigation Authority Report and Accounts 2014/15, p20
 NHS Litigation Authority Report and Accounts 2014/15, p50
 NHS Litigation Authority Report and Accounts 2014/15, p50
 HM Government, Whole of Government Accounts year ended 31 March 2014, p26