The government has hinted it is poised for sweeping reforms of clinical negligence claims amid continued concern about costs.
Speaking in the House of Lords this week, the government’s health spokesperson Lord Bethell said current arrangements were ‘completely unsatisfactory’ and that ministers were finalising a review that will be published shortly.
The peer said the costs of clinical negligence continue to rise every year at an ‘unsustainable rate’ and work was needed across government to address this.
The review would appear to be looking at all aspects of financial burdens on the NHS. This would include potential caps on claimant costs for lower-value cases, but it is likely that defendant costs will also come under scrutiny. Liberal Democrat Lord Storey pointed out that by paying NHS defence legal costs regardless of the outcome of the claim, the government created ‘perverse incentives that reward "deny, defend, delay" behaviours by lawyers’. Lord Bethell responded by saying arrangements for clinical negligence payments were currently under review.
But the peer confirmed that repeal of section 2(4) of the Law Reform (Personal Injuries) Act was not planned for the moment. This is the legislation which effectively pays compensation for clinical negligence injuries based on the cost of private rather than NHS medical treatment, and has been the subject of lobbying by medical defence groups in recent years.
NHS Resolution’s annual report for 2018/19, published last July, showed that spending on claimant costs was £442.3m – a fall of more than £24m. Defence legal costs increased by 8.3% in 2018/19 to £139.6m, which the NHSR explained was partly due to more activity on early investigation.
Damages payments to claimants in clinical claims went up 13.5% to almost £1.4bn, taking overall spending on medical negligence to £2.36bn.
There is still no sign of a government decision on a fixed recoverable costs scheme for claims. It is understood there is still support for the measure, potentially for claims valued up to £25,000, but there are difficulties in agreeing what the costs would be. A working group set up by the Civil Justice Council last year failed to find consensus on the caps level and the idea appeared to be kicked into the long grass once again.