In the face of increasing government and insurance company pressure for a reduction in clinical negligence claims and their associated cost, and as a claimant clinical negligence lawyer with an NHS past as an ex-medic, I read with particular interest two recent articles in two different broadsheet newspapers on some topical problems within the NHS.

The King’s Fund has just reported that the number of NHS beds has halved in the last 30 years. It may not be coincidence that, in a similar period of time, numbers of clinical negligence claims have significantly increased, although it is not possible to compare with certainty the figures because of the vagaries of past reporting of adverse incidents and claims within the NHS. Nevertheless, as the article states: “bed numbers have dropped from 299,000 to 142,000 since 1987, at a time when the population has risen by 16 per cent, with the number of pensioners up by one third”. This is a huge reduction and it is further noted in the report that many hospitals are stretched to breaking point. It is also remarked that England has “just 2.3 beds per 1,000 people, compared with an EU average of 3.7”.

The second article was in the Guardian:

This article states that a survey carried out by the Royal College of Nursing “of 30,000 nurses finds 53% fear quality of care is suffering, and some patients are being left to die alone”, with an explanation within the body of the text commenting that 53% of nurses said patient care had been compromised in their last shift, with over two-thirds of these being in A&E and other urgent or emergency care settings. Further, the article highlights that “One in three hospital nurses are too busy to relieve patients’ pain, give them their medication on time or talk to them and their families, research reveals”. Additionally, 36% of respondents did not have enough time to carry out “necessary” tasks. The survey is alarming, though, and whilst apparently a Department of Health spokesman declared that the government is committed to funding an extra 10,000 training places for nurses, given their modest pay and often difficult working conditions, and of course Brexit, it is not immediately obvious, to me at least, as to how exactly the most needed posts are going to be filled. It is also of no surprise that the Guardian picks up on the King’s Fund Report on bed numbers, which simply compounds the problem.

It goes without saying that there are those who would argue that these problems are fuelled by excessive claimant clinical negligence cases and their drain on NHS funds, which could be better used to pay for beds and nurses, and that me and my ilk are to blame, at least in part. However, whilst that is a whole separate debate, the bottom line is that clinical negligence cases can and will only exist when there has been negligence by a health professional resulting in harm to a patient: absent the negligence, absent the case and absent the resulting cost. It is not rocket science to see (as I and many others have written countless times before) that prevention is better than cure.

It is all very well blaming the lawyers (and by extrapolation injured patients who have the temerity to sue the NHS); but, whilst the NHS’s expenditure on clinical claims in 2016/17 (which will reflect claims reported to the NHSLA over a number of the preceding years) of £1.7 billion is indeed a very large figure, it was in fact less than 1.4% of the Department of Health’s Budget of £123 billion[1], which in turn was about 6% of the GDP. It is worth remembering the context of these figures: current health expenditure in the UK was a relatively poor 9.75% of GDP in 2016, as compared to 17.21% in the USA, 11.27% in Germany and 10.98% in France, and the NHS employs well over 550,000 clinical and related staff and deals with 1 million patients every 1½ days [source: NHS Confederation]. Whilst the best way of reducing the figure of £1.7 billion is to reduce the negligent errors in the first place, legal claims remain significant in number and cost and it is, therefore, perhaps somewhat trite to point out that cuts in hospital beds and shortages of nurses will likely serve only to increase rather than reduce the errors.

Further, notwithstanding NHS Resolution’s assertion that one of their main aims is to improve patient safety by way of “candour, investigation and learning”, it remains a sad fact that the Chief Medical Officer’s paper on the NHS published on 13 June 2000, over 17 years ago, entitled “An organisation with a memory”, said much the same. The paper is now located in The National Archives with a summary paragraph stating, “Adverse health care events cannot be eliminated from complex modern health care but 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. The cost of adverse events is increasing; there is also a distressing similarity present in some of them”. Therefore, it very much appears that the NHS seems to have made little, if any, progress where it really matters – learning – and we can only hope that the new NHS Resolution can and will improve upon its predecessor, the NHS Litigation Authority – but please excuse me if I can only but think: we have been here before.

For my part, as an ex-NHS employee and a staunch NHS supporter, I would welcome a reduction in clinical negligence costs, but one that is as a result of a reduction in negligent incidents in the NHS and not one that comes at the expense of access to justice and appropriate redress for negligently-damaged patients.1