The new government’s promise of extra cash, staff and hospitals for the NHS is welcome. The details are, of course, yet to be finally ascertained and it remains to be seen exactly how much in the way of funds and how many staff will be provided. During the election campaign, focus appeared to fall on the number of new nurses which the government would provide but, notwithstanding arguments about the numbers, an increase will no doubt make a noticeable difference to patient care in general terms. However, it is also noticeable that, perhaps more alarmingly, doctors are being haemorrhaged from the NHS: junior doctors in training are leaving to work abroad, in particular New Zealand, Australia and Canada, presumably disillusioned with their treatment, pay and future; senior doctors are taking early retirement with little or no incentive to stay on, aggravated by the pension situation; others move into the pharmaceutical industry, academia or even medicolegal work; the need for GPs rises as their numbers continue to fall, with incumbent GPs calling out for more time with their patients, 5-10 minute consultations generally being insufficient. So, notwithstanding all the pre-election promises, recruitment to the NHS, both of doctors and nurses, will be a significant challenge for the government.
And it should also be borne in mind that it is not just about quantity but also quality. According to NHSR’s annual report of 2018-2019, the “cost of harm” to the NHS (the value of damages payments, claimant and defendant legal costs) is just under £2.4 billion (c.60% of which relates to maternity claims), which is less than 2% of the NHS’s annual budget (the non-maternity claims representing under c.0.75%). Although in real terms it is a very sizeable sum, relatively it is modest given the overall size of the NHS, the numbers of patients being treated on a daily basis and bearing in mind that there has been a steady increase in hospital “activity” of 19% over the three years to 2016 (which will be continuing to date). The costs to the NHS, therefore, do at least appear to be falling relative to activity. However, the government in 2019 introduced state-backed indemnity for GPs, with NHS Resolution (NHSR) running the GPs’ clinical negligence scheme (CNSGP) alongside the hospital trusts’ clinical negligence scheme (CNST). Prior to 1 April 2019, GPs had their own private indemnity, usually through one of the medical defence organisations. This state-backed indemnity extension will only increase the costs to the government as it will now be responsible for negligent GP errors.
To date, to aid with the reduction in the cost of clinical mistakes and the subsequent negligence claims, the government has concentrated on trying to reduce the legal costs of such claims. The significant majority of claims against the NHS fall into the under £25,000 compensation bracket, for which the introduction of fixed recoverable costs will have a material impact in reducing the overall expense to the NHS per claim. For the higher value claims, which are considerably fewer in number but greater in overall cost, costs budgeting has seemingly been working and has all but been accepted by legal practitioners on both sides of the fence. It unsurprisingly had teething troubles, but many of these have been ironed out gradually with time. And the process of controlling costs at the end of a case by way of a costs detailed assessment has been enhanced by the application of the “new” test of proportionality to ensure costs incurred are proportionate to, amongst other things, the level of damages recovered. Additionally, NHSR insists that it is settling claims earlier in an attempt to keep costs down and, further, it asserts that it considers ADR more readily and is utilising its mediation scheme (apparently at an increase of 110%) to try to avoid cases proceeding to expensive trials at which the risks of winning or losing are somewhat of a lottery. It is interesting to note that NHSR’s annual report records that claimants’ legal costs have fallen but defendants’ legal costs have risen, although both by only a small amount (5% vs 8% respectively).
However, again to bang the age-old drum, it remains the case that avoiding mistakes in the first place will be the more effective way of managing the costs to the NHS of and associated with legal claims. Whilst it is important to note that the number of legal claims has over the last year remained relatively static, significant mistakes are still being made. The mistakes which lead to clinical negligence claims are often not complicated and many consist of basic medical errors unrelated to a shortage of staff. Having said that, it is almost certainly the case that some of these errors relate to staff having to work in an all too pressurised environment due to a lack of staff and resources, and it is no doubt hoped that this will be relieved at least to some extent by the addition of extra staff, greater funds and more hospitals. But it is also important to ensure that the promised “new” staff are properly trained, otherwise basic mistakes will not only continue to be made but potentially increasingly so. It is, therefore, not just important to recruit new staff, as the government has pledged to do, but also to take the time, effort and cost to train them properly and to ensure they are appropriately qualified and/or experienced. When all is said and done, notwithstanding the methods being deployed relatively successfully to reduce legal costs, such reductions could easily be eaten into by poor quality recruitment. So, let us hope both that the government’s desire to swell the deficient numbers of nurses and doctors in the NHS is not just a political game of numbers and that it will not compromise on the quality of care that will be provided by these new staff: otherwise, recruiting large numbers of insufficiently trained, qualified and experienced personnel could just end up as being rather a false economy.