Clinical negligence liabilities overshadow public finances, MDU warns

The Medical Defence Union (MDU) says it is extremely worrying that the amount of money earmarked to cover the total cost of clinical negligence claims (including both IBNR and PPOs) against the NHS in England has risen to £128.6 billion.

This is an increase on the previous year’s figure of £85.2 billion and the first time the provision for claims has risen above £100 billion. Payments for settled claims during the year also increased by 9% to £2.5 billion compared to £2.3bn in 2020/21.

The astonishing figure, published in NHS Resolution’s (NHSR) Annual report for 2021/22, has increased more than six-fold in the last decade from £17.5bn in 2011. The report reveals the recent 51% increase in claims obligations is due to the change in the Treasury discount rate applied to compensation pay-outs. It's not an indication of declining medical standards.

Helen Vernon, NHSR’s chief executive, said in her report that she wanted to “pay tribute to our incredible staff who go above and beyond every day to deliver to the best of their ability for the NHS and the patients we all work for”.

This also comes as the Health and Social Care committee published its workforce, recruitment, training and retention in health and social care report, which highlights the risk posed to patient safety by staffing shortfalls. Without sufficient numbers of trained clinical staff, the NHS cannot address the current waiting list backlog or adapt to the increased demand on it expected as our population ages.

Now, more than ever, it is clear that the spiralling cost of claims is not sustainable.

Dr Michael Devlin, MDU head of standards and liaison, said:

"The scale of the costs facing the NHS for clinical negligence claims will have an impact on the public purse at a time when the NHS needs every penny to go towards treating patients and reducing waiting lists.

"As explained in the NHS Resolution report, the increase in the cost of clinical negligence in the latest NHS figures is caused by changes to the way damages are calculated. The only way to tackle this is for the government to grasp the nettle and move ahead with the comprehensive legal reforms needed to the current system.

"The House of Commons Health and Social Care Select Committee has published a report with recommendations on NHS litigation reform. Among its conclusions was that: ‘The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning.'

"Something we have been calling for repeatedly is the repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948. This outdated law requires the courts to disregard the existence of NHS care when determining compensation awards. The Committee agreed with us. The latest NHS figures show why this and other reforms cannot wait any longer."

The MDU’s fair compensation campaign has more details of the changes needed.  

This page was correct at publication on 26/07/2022. 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.

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