Clinical negligence reform should be top of the Government's agenda

The spiralling cost of compensation facing the NHS means colossal sums of money are being diverted from patient care at a time when the service is under severe financial strain.

The Government's 70th birthday gift to the NHS was a promised budget increase of £20bn per year over the next five years.

The additional funding was welcome but the following month, it was thrown into sharp relief by news that the NHS's clinical negligence liabilities for hospitals in England had almost trebled in four years to a staggering £77 billion.

The spiralling cost of compensation facing the NHS means colossal sums of money are being diverted from patient care at a time when the service is under severe financial strain. Within one 48-hour period last October, two patients with brain injuries received compensation awards of £37million and £27million to provide for their long-term care in the private sector.

Patients who have been negligently harmed must be compensated. But the law requires compensators, including the NHS, to provide funds for private and not NHS care. This law, S2(4) of the 1948 Law Reform Act, pre-dates the NHS and its repeal is long overdue.

This is just one of a series of radical tort reforms that the Government needs to make to restore fairness and proportionality to a system in which money is streaming out of the NHS. These are funds that could be kept within the NHS for the benefit of all patients including those with severe disabilities as a result of birth injuries, accidents or other causes, who are reliant on health and social care, but who cannot prove negligence.

There is a solution to this extremely unbalanced system. Personal injury defendants such as the NHS and others, should be able to purchase care packages from public providers on the basis that the same level of care should be available to everyone with the same injury or disability. Precious funds would not be siphoned away from NHS services and this money would be augmented by payments from defendants. These new funds should be used to improve health and care services overall.

We must all do everything we can to make healthcare as safe as possible. However, the inconvenient truth is that the rise in the number and cost of claims is not driven by the standard of care provided. In fact standards remain high.

The drivers are legal and economic and far removed from the clinical coalface, a point supported by the National Audit Office which reported that 'the rise in the number of claims and claimants’ costs for clinical negligence is closely associated with recent legal reforms and market developments in legal services.'

Changes to the litigation system have only made the problem worse, culminating in the unexpected decision to reduce the personal injury discount rate by 3.25% which came into effect in March 2017. In the same month, the Chancellor set aside an additional £5.9 billion for the NHS to cover the cost of this change for a three year period.

Clinical negligence reform should be at the top of the Government’s list of priorities. It is perverse to mark the NHS’s landmark year by pouring in additional funding while doing nothing to address an issue that threatens to bleed the service dry.

Find out more about the MDU’s suggestions for reform at

A version of this article first appeared in The Times on 20 July 2018 


This page was correct at publication on 20/12/2018. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Dr Christine Tomkins MDU chief executive

by Dr Christine Tomkins Chief executive of the MDU