It was reported this week that the NHS has set aside £26bn in order to cover medical negligence claims against its hospitals and care providers.  This is to cover both its existing and its future liabilities.

Whilst this may seem like a staggering amount of money, it is important to note that it is set aside to cover future claims as well, not just those already in existence.  Of course this cannot be a known amount and has to be budgeted for, but that is not to say that £26bn will be spent or indeed over what period. The annual NHS expenditure on medical negligence claims is about £1.3bn, which is about 1% of the total NHS budget.

Former Lloyd’s of London insurance executive Michael Wade is quoted in the article as stating that the cost of NHS compensation is ‘unsustainable’.  He is said to be investigating the viability of public insurance schemes on the Government’s behalf.

It seems clear that the Government is seeking ways to try to limit the NHS’s liability to patients who have suffered injury and sometimes irreparable harm as a result of incompetence on the part of its medical staff.  It may be that they will consider moving to an indemnity type scheme such as the Criminal Injuries Compensation Authority, which in certain circumstances pays out compensation to people who have suffered injuries as the result of a violent crime.  The maximum compensation payable under the current scheme is £500,000.  That means that those who have lifelong needs as a result of criminally-inflicted injuries are often hugely under-compensated.  The cost of buying in care for themselves for the rest of their life, not to mention the cost of the treatment and therapies they may need is often well in excess of £500,000.

If the Government decided to create a similar scheme in respect of the NHS, it is highly likely that such a scheme would also have a cap on the level of compensation which could be paid out.  Whatever the level of the cap, it is inevitable that it would result in numerous severely injured patients being under-compensated every year – sometimes by millions of pounds. 

Limiting the NHS’s liability to patients in any way would be incredibly unfair to those whose lives have been devastated by medical negligence.  It is vital that patients have recourse when they have received treatment that has fallen far below the standard usually expected of a medical practitioner.  Whilst medical staff can be reported to and investigated by their own regulatory body, for example the General Medical Council (GMC), even if they are ultimately struck off this does not assist the patient who has suffered injury as a result of their incompetent treatment.

In addition, the NHS Complaints Procedure has been found to be very seriously flawed by the Parliamentary and Health Ombudsman.  A recent report found that numerous complaints of death or serious harm were not investigated properly.  The Complaints Procedure is supposed to offer resolution to patients who have concerns or complaints about the care they have received.  However, it is clear that in many cases patients are simply ‘fobbed off’ that the treatment they received was acceptable.  Many patients resort to legal action because they were unable to find out answers to basic questions about their care.

It would be a very poor situation indeed if patients were unable to claim from the NHS the funds needed to restore their lives following negligently inflicted injuries and were forced to rely upon a deeply flawed complaints process to try to resolve their concerns.

Further, much of this Government’s tenure has involved trying to cut costs across the NHS.  Cutting costs and resources in front line care can only lead to failings in patient care. This in turn increases the likelihood of claims being made against the NHS for negligent treatment. It would be very wrong if those patients then only had limited access to compensation for injuries caused by incompetent care.

Of course the cost to the NHS of medical negligence claims is a cause for concern, but limiting a patient’s basic right of access to justice for the substandard care they have received is not the answer.  One of the original aims of the National Health Service Litigation Authority (NHSLA) was to centralise the response to claims and to feedback data in respect of mistakes made so that lessons could be learned.  The latter would in all likelihood help to cut costs but on the whole this feedback has not happened. Surely feeding back information to hospital Trusts on harmful errors made would better aid the cutting of costs than limiting a patient’s right to recompense for their injuries.