The report by The Public Accounts Committee looking at financial pressures on the NHS rightfully criticises the government for being too slow to get to grips with the burgeoning cost of negligence. It found that the annual cost of clinical negligence for NHS trusts has quadrupled over the last decade (from £400 million in 2006/07 to £1.6 billion in 2016/17) diverting precious resources away from patients and frontline services. It also warned that the NHS’s defensive culture when things goes wrong needs to change.
As a medical negligence lawyer, I totally agree with the PAC’s analysis. Yes, sadly, the rising bill faced by the NHS for clinical negligence is predictable whilst a culture persists of a reluctance to learn from mistakes and in-built organisational barriers to this.
My clients do not take delight in suing the NHS. They would much rather have not experienced life changing injuries in the first place. Often these are not one-off mistakes either and the extent to which events leading to claims reoccur is shocking to those of us in the claimant lawyer community.
If MPs are saying that the primary way to tackle spiralling spend on clinical negligence litigation is to learn from clinical mistakes and to put in place procedures to prevent recurring errors, then at least the problem is being recognised. The next step is to effect positive change which is, of course, the tricky part.
I have 5 key recommendations for Mr Hunt to tackle to achieve that change:
- Change the culture of silence when mistakes occur. Collaboration and mediation are the way forward to help patients and family members get answers following adverse events. If medical professional and NHS Trusts close ranks, it is understandable why people turn to litigation.
- Introduce a system where there is an honest review of mistakes and appraisal between patient, doctor and the NHS Trust concerned to identify what went wrong and the lessons to be learned.
- Support should be given to the patient and their family, but also importantly the doctors and medical professionals involved. The impact on medical professionals involved in a claim for medical negligence is often given insufficient consideration.
- Litigation against the NHS should be viewed as an opportunity to obtain peer review of standards and treatment (via the medico-legal experts) and facilitate a collaborative approach between NHS safety boards, NHS Resolution and medico-legal experts to identify lessons to be learned and how practises can be improved.
- NHS Resolution has, of late, commissioned or produced reports dealing with trends in litigation and in particular the causes of birth injury claims. Such reviews should take place on an annual basis and should not be limited to the high-value claims involving brain and spinal injury. All categories of claim should be reviewed to identify any re-occurring trends and reported back to the NHS as a whole.
Finally another area which is crying out for reform is the combative way the NHS deals with litigation claims. Inefficiency, delay and requiring claims to go deep into the litigation process are common before settlements are reached. If the defensive culture is changed and admissions of liability were made earlier than is typically the case at present, then there would be a demonstrable impact on the bottom line of the total litigation bill.
Many of my clients say their motivation in suing the NHS is not just financial compensation but to highlight errors made so that the NHS can learn important lessons. The PAC is right to point out that vital lessons – medical and cultural- are not being heeded by the NHS and change is urgently required.