Under the headline “NHS: learning from mistakes” in the Law Society Gazette this week (16 February 2018), the President of the Forum of Insurance Lawyers (FOIL), Mr Stephen Hines, makes a few observations upon which I think it is worth commenting. His article is itself an opinion following on from an earlier article in The Times (8 February 2018) regarding compensation pay outs by the NHS and whether the NHS was able to afford them. Whilst Mr Hines’ opinion piece is entitled to suggest that the NHS needs to learn from its mistakes, a sentiment with which I wholeheartedly agree, in fact much of the article is not really about that but, rather, is his view that the clinical negligence legal process needs reform to reduce excessive clinical negligence claims and costs which are so detrimental to the NHS.

Mr Hines begins by setting out the basis for his criticism: the numbers. He remarks that the National Audit Office predicts that the cost of clinical negligence claims will nearly quadruple by 2020/21 when compared with 2010/11. He does not comment on the breakdown of that increase: 45% being due to an increase in the number of claims (which can be reduced by less negligence), 33% due to an increase in the damages award (which will to some extent have been affected by the government’s change in the discount rate) and 21% due to an increase in legal costs (National Audit Office, 2017). He says that this increase has not been assuaged by the LASPO reforms in 2013, which came into force almost 5 years ago, but makes no comment that some clinical negligence claims last 4-5 years or more and that it is broadly accepted “on the ground” that we have still not yet seen the full effect of the LASPO reforms. In particular, he does not remark on NHS Resolution’s 2016-17 Annual Report which demonstrates in terms that the number of new reported clinical claims has been falling year on year since 2013/14 (11,945 to 10,686).

He says that “legal costs continue to increase relentlessly”, relying on data from NHS Resolution’s report that claimant lawyer costs have increased by 19% (to £498.5 million) whereas defendant lawyer costs have increased by only 5% (to £125.7 million). Whilst he does seem to be implicitly critical of NHS Resolution, he does not provide any reason for these costs increases, though he does observe the claimant side’s argument that the increase in costs is in large part because of defendant (including NHS Resolution) conduct. It is notable that NHS Resolution admits in its report that it (or, rather, its predecessor, the NHS Litigation Authority) failed to reach its KPI with respect to the response time to letters of claim. It is also notable that NHS Resolution observes that: “For the first time since 2004/05 the average claimant legal costs as a percentage of the total claim value has fallen slightly (where damages are between £1 to £100,000)”. It is perhaps worth commenting in passing that the NHS Annual Budget is £124 billion; clinical negligence costs and damages were £1.7 billion in 2016-17 (1.37% of the Budget), of which the cost of the lawyers was £0.62 billion (0.5%).

Mr Hines further observes that “The costs of rehabilitation are also on the up, and there is the additional issue of double recovery”. However, he does not remark that the discount rate was increased by government a year ago or that the Wokingham case that he quotes in his article was the court confirming that “The Care Act 2014 and the associated ‘charging regulations’ make it clear that while councils can expect people with capital over £23,250 to pay for their own care, some forms of capital must be disregarded. These include capital derived from an award of damages for personal injury which is administered by a court, or the value of the person’s main or only home where the person is receiving care is not in a care home” (John Hyde, 2018) with The Care Act and the charging regulations having been legislated by government.

Mr Hines asserts that it is not just about the numbers, though, but also about the impact of clinical negligence claims on medical care. He opines that, although there were cases that NHS Resolution resolved without payment of damages (some 6,553 in 2016/17), “settlements of this kind harbour concealed costs to the NHS, such as doctors and nurses being taken away from the frontline, which does nothing to assist with the adequate provision of care for other patients”. I do not understand his figure, though, as NHS Resolution’s report states 5,252. Nor do I believe that these are “settlements”, as no damages were paid, as opposed to just claims that were notified to NHS Resolution but then abandoned after investigation and before issue of proceedings. Mr Hines also provides no evidence to support his assertion that these types of cases take away doctors and nurses from the frontline. In my experience, such staff will often already have been involved in the case at the behest of their employer NHS Trust in response to an adverse incident having occurred and an internal inquiry or investigation taking place upon which they are required to make a statement. This has usually taken place well before any such clinical negligence legal process gets underway and is, in any event, necessary for appropriate internal Trust governance and quality standards.

Mr Hines also turns to the age-old argument that litigation creates defensive medicine. He may well be correct about this, on at least some level (although he cites no statistics), but doctors would be wise to read the BMJ article on the subject, and in particular advice from the Medical Protection Society, “Follow the principles of good medical practice”, and the General Medical Council, “Make the patient your first concern”.

Having set out the numbers and the effect on the NHS, Mr Hines does acknowledge that “the outcome of medical negligence is often life-changing and sometimes catastrophic – a drawn-out litigation process will only make the trauma experienced by the claimant more acute”. Correct. He then observes, “The system is clearly in need of an overhaul, and the government should prioritise this to alleviate the pressure placed on claimants and NHS staff alike”. Also correct, if one is to assume that the system he is referring to is the one in his title – the NHS – and that NHS staff should stop making and repeating clinical errors that result in harm and should learn from their mistakes.

It is correct and obvious that NHS Resolution and its defence lawyers should admit liability and settle cases early to keep legal costs down, and the claimant side have been saying this for years; and Mr Hines is right to identify the steps being taken by NHS Resolution to create a more effective early ‘process’, including the mediation scheme and the proposed Rapid Resolution and Redress scheme. However, one cannot escape the basic tenet that the most effective way to reduce the impact of clinical negligence claims is to prevent mistakes in the first place, not to reform the processes by which compensation is awarded to victims. A problem, though, is that the NHS still has a long way to go when it comes to learning from its mistakes and, until that day, injured victims will be dependent upon an appropriate legal process and reform of that process is not the answer. It must be remembered that it was on 13 June 2000 that the then Chief Medical Officer published a white paper on the NHS entitled “An organisation with a memory”, in which “the recommendations of this expert group are designed to ensure that lessons from the past are used to reduce the risk to patients in the future” given that “Specific types of adverse events are seen to repeat themselves at intervals, thus demonstrating that lessons have not been learned”. For those of us who were working in the industry when that paper was published, and continue to do so, since our cynicism will have to be excused given that, in those 18 years, the key statistic is that adverse clinical incidents continue to increase year on year: “Incidents reported in the 12 months July 2016 to June 2017: 1,928,048 incidents were reported for England. This is an increase of 6.9% compared to the previous 12-month period: 1,803,345 from July 2015 to June 2016(NHS, 2017).

The NHS faces a multitude of problems and pressures involving a combination of complex, interlinking factors, with litigation being just one and a relatively small one at that. These factors include an ageing, increasingly obese and increasingly demanding population; hospital activity outstripping NHS funding with underinvestment by government; an over-bureaucratic NHS, with poor investment and finance governance; poor staff pay, working hours and morale; doctors and nurses leaving the NHS and/or not able to be recruited (which will stretch an already under-staffed, under-resourced NHS resulting in more mistakes and more compensation claims: the perfect storm); and the list goes on.

Mr Hines does not actually make substantive comment on the subject matter of his article: that adverse clinical incidents continue to increase and how the problem of learning from them to avoid them might be tackled. In fact, what he really appears to be after is reform of the way clinical negligence claims and potential claims are handled. This is evidenced by him in his article stating, “It is evident that the way clinical negligence claims are lodged and contested needs serious reform” and commenting on Clare Foges’ article ‘Many NHS victims should settle for apology‘ (Times, 5 February). In my view, the government needs to be focusing on tackling the prevention of clinical negligence in the first place rather than messing about with reform of the legal process of civil litigation, which to my mind is trying to close the stable door after the horse has bolted, and which also reduces the access to justice for some state-injured victims

In his final sentence, Mr Hines comments on Lord Sumption’s speech in November 2017 advocating no-fault liability, although the latter accepted his was a minority view. He was, though, discussing all personal injury claims and not just clinical negligence, noting: “According the Association of British Insurers, the corresponding figure [for the number of personal injury claims] for 2013-14 was about 1,200,000. Almost all of this increase was attributable to road accidents, which now account for about 80% of all accidents”. This must be contrasted with the figure from NHS Resolution of new clinical claims of 11,945 for the same year, which is less than 1%. Be that as it may, I suspect in reality, as President of the Forum of Insurance Lawyers, Mr Hines’ interests in Lord Sumption’s support for no-fault liability lie far further afield than just clinical negligence.