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Written on 3rd May 2022 by Susan Brown

APIL - proposed new scheme for NHS negligence claims is ‘completely unacceptable’.

APIL, the Association of Personal Injury Lawyers, which represents injured people, says the Parliamentary Health and Social Care Committee’s proposed new scheme for NHS negligence claims is ‘completely unacceptable’.

APIL’s statement responded to the Parliamentary Health and Social Care Committee’s report, NHS Litigation Reform, which proposes cutting compensation for the most severely injured patients and removing the involvement of the courts and the patient’s lawyers from a new administrative claims process. The report by the committee of MPs, led by Jeremy Hunt, says that its proposed system will prioritise NHS learning whilst saving costs. However, concerns about the proposals have been raised by The Medical Defence Union (MDU) which represents doctors, and APIL on behalf of injured patients.

What changes are proposed by the Parliamentary Health and Social Care Committee’s report, NHS Litigation Reform?

The report’s proposals for reform included:

  • Introducing an administrative scheme which would decide on an injured patient’s entitlement to compensation. The scheme would remove the need for injured patients to prove that their injury was caused by clinical negligence. It was suggested that compensation could be awarded when correct procedures had not been followed and ‘the system failed to perform’. However, the specific eligibility criteria, which would also determine how many harmed patients might be eligible to claim, was left for the government to decide.  

  • Cutting compensation for those who have suffered the greatest harm and have the greatest lifelong need by:
    • Removing their right to claim the full costs of private care, so that only the costs of topping up care over and above care that could be provided by NHS and social care could be included in their claim.
    • Standardising children’s compensation for future loss of earnings to assume national average wages, so that their claims are no longer personalised based on their earnings expectations arising from their parents’ earnings or income.
  • A (separate) standardised investigation process after a patient suffers avoidable harm which prioritises learning from mistakes to prevent tragedies from being repeated. Investigations should take no longer than six months and be independently led involving families and the NHS trust, include implementation of safety recommendations and communicate lessons across the NHS. 
  • Patients would still have the option of making a clinical negligence claim via litigation but only after they had pursued their case through the administrative system. If they reject the compensation figure offered by the administrative system and then lose their claim (or achieve less) through the court system, they would lose their current protection and have to pay the winning NHS’s legal costs.

Throughout the report, the committee’s lack of respect for the lawyers who represent injured patients was clear. The aim of the proposals is clearly to take decisions about when and how to compensate NHS patients away from the justice system provided by the courts, and to deny patients their existing right to specialist, informed legal representation. Where evidence was given by families of severely injured children about the invaluable support they had received from their lawyers, it was clear that the committee demonstrated quite extraordinary mental gymnastics in its attempt to justify its firmly held agenda to deny their right to representation:

We heard powerful testimony from people who have been through litigation about how they valued the support from solicitors who become their advocates and guides within the labyrinthine process. Whilst we do not doubt that there are many excellent solicitors who act in the best interests of people who have suffered terrible trauma, the fact that their guidance, advocacy and compassion is so valued only underlines the necessity for change. Legal professionals will only take commercially viable cases with a prospect of success, meaning many people who have suffered harm will never benefit from expert advocacy.

In the system we recommend, someone with a claim would not need intensive legal support as their claim would be evaluated inquisitorially without months or years of toil to demonstrate clinical negligence. It is also important to note that there is no guarantee that someone will find a solicitor equipped to provide them with the support and guidance they need. By moving away from litigation to an administrative system, patients and families would not have to enter a lottery of legal representation.’  



What happens next?

The government now has two months to respond to the committee’s report, but there are many reasons to think that the government are unlikely to accept the committee’s proposals in full.

The report refers to the many previously unsuccessful attempts to bring in no-fault clinical negligence compensation. Just a few months ago the same government ruled out the same committee’s proposed Rapid Resolution and Redress (RRR) scheme to remove compensation claims for babies brain injured by negligent NHS maternity care from the current clinical negligence claims system. No-fault systems always sound attractive, opening up the possibility of compensation to a greater number of injured patients who, despite their severe injuries, cannot currently prove their entitlement to compensation under the existing system. However, the possibility of having to compensate an indefinite number of additional claimants at potentially huge, increased cost has always ultimately led governments to resile from bringing in a no-fault system.

The difference this time is that the government is desperate. The NHS is incapable of learning from mistakes, leaving more patients at risk of harm, as reports such as the Ockenden Review  clearly demonstrate. The NHS’s liability arising from lifelong payments to compensate brain damaged babies continues to increase and stretches for decades into the future.  Professional organisations, such as RCEM,  RCoA, RCM and RCOG, have repeatedly warned that government failure to address NHS workforce shortages and other problems are threatening the safety of patients and putting an unsustainable strain on healthcare staff. The harm to patients isn’t going to stop under the current over-stretched, under-resourced and Covid-worn NHS, which is unable to reverse its entrenched, non-learning culture.

NHS scandal after scandal has shown that is unrealistic to assume that changing a legal system based on blame will bring about the change that countless inquiries have called for in vain. The type of blame that threatens patient safety comes from within NHS trust management teams, clinical teams and culture, and will not be prevented by removing legal accountability.

The only way that a no-blame compensation system could be of interest to this government would be by significantly reducing the overall cost of compensating patients who have been harmed by their NHS care. With the no-negligence doors flung open to allow more claims, the cost savings of any proposed new system can only be gained by significantly reducing compensation for the most severely injured, often infant patients, and removing these vulnerable claimants’ fundamental right to representation by a specialist lawyer.

APIL believe that implementation of the proposed scheme ‘would undermine the principle of full and fair compensation for people who are injured through the negligence of others and that is completely unacceptable. It is often forgotten that behind the statistics are real people and families who have been harmed when they should not have been…The purpose of compensation is to help them to try to get their lives back on track.”

Commenting on the proposed cuts to the costs of care which ensure essential lifelong care provision for so many brain-injured babies and severely disabled children, APIL’s Guy Forster highlighted that NHS patients who suffer devastating medical negligence should not be expected to accept further treatment from the same provider which has already let them down, or rely on the over-stretched system of state-funded care. “It is naïve, in the extreme, to suggest that our already over-burdened NHS and social care system is capable of providing the care these patients need…The system was often notoriously slow, even before the additional burden of the covid pandemic. Relying on the state to pick up the pieces of negligence in the current climate would be nothing less than catastrophic for both injured patients and the NHS.”

The MDU which, as a prominent medical defence organisation, has long campaigned for the reduction of levels of compensation also expressed ‘considerable reservations’  about the committee’s recommendation to remove the need to prove clinical negligence after an adverse event in the NHS, and establish an administrative body to determine whether the harm was avoidable. It said that establishing the criteria (by which eligibility would be judged) would be a complex task and expressed significant concerns about the affordability of such a scheme.

We now await the government’s formal response to the NHS Litigation Reform report. Meanwhile, following the recent enactment of the Health and Care Bill, changes to HSIB/HSSIB, safe space for some patient safety investigations and a new special health authority for maternity safety investigations will soon be under way.

At Boyes Turner, we remain committed to helping severely injured patients obtain their full entitlement to compensation. We support APIL in campaigning for change to reduce the harm suffered by injured patients, which will only come from a properly resourced and staffed, accountable ‘learning’ NHS delivering higher standards of care.

If you have suffered serious injury as a result of medical negligence, you can talk to one of our specialist solicitors, free and confidentially, about making a claim by contacting us here.