Speaking last night at an NHS Confederation and Academy of Medical Royal Colleges event to discuss reform in the NHS clinical negligence system, MDU chief executive Dr Christine Tomkins called for the legal system, which incentivises and promotes litigation over other methods of resolving claims, to be urgently reformed.
Dr Tomkins said:
"The NHS faces a colossal bill for clinical negligence claims with NHS resolution's annual report for 2017/18 showing their balance sheet provisions have almost trebled to £77 billion in just four years, and that's just for hospitals in England.
"The effect on patients is that doctors are deterred from high risk, high cost activities in private and general practice, and in NHS hospitals, money is being diverted to claims and away from frontline patient care. A state backed indemnity scheme for GPs is proposed to start in April 2019. But the state scheme will not address the root cause of unaffordable claims.
"We all want healthcare to be safe. But the deteriorating claims environment has nothing to do with any deterioration in clinical standards. The cause lies in the legal environment, and doctors are not responsible for the legal environment and can’t control it. The National Audit Office has pointed out that 'the rise in the number of claims and claimants’ legal costs for clinical negligence is closely associated with recent legal reforms and market developments in legal services'.
"The current system is not working, especially when you consider that the majority of claims the MDU sees do not result in compensation being paid because the patient had not been negligently harmed. This was the case for 83% of medical claims the MDU closed in 2017.
"The situation has been made far worse by the change to the personal injury discount rate, which was reduced by 3.25% in March 2017. In a debate in the House of Lords on Tuesday this week, it was stated the change in the discount rate means that every day £3.3 million is not being spent on the NHS frontline but is going to the cost of claims.
"Ultimately, we are all footing the bill for these claims as tax payers and patients. The result is damaged access to healthcare for all of us and we must find a solution."
The MDU is calling for root and branch legal reform including the following six suggestions:
- Repeal of Section 2(4) of the 1948 Law Reform Act. It requires that patients treated by the NHS should be compensated for negligently caused damage on the basis that all their future care will be provided in the private sector. It predates the NHS but given the NHS is 70 years old now and it is high time for reform.
Personal injury defendants should be allowed by buy health and social care from public providers.
The same care should be available to all patients with the same condition, however caused. A standard package of health and social care that meets the patient’s reasonable needs should be set by an independent body, with the aim that all with that disability will receive it.
There should be an ultimate limitation period and not the arrangements we have now which can mean claims brought as long as 40 years after the event.
There should be a limit on recoverable future loss of earnings which can run to millions of pounds. One example could cap loss of earnings at three times the national average annual wage per annum, which would be about £86k for every year of loss of earnings.
There should be a personal injury discount rate that reflects the way damages are invested and spent. This requires evidence of how damages are actually invested and spent which is currently lacking. Compensation payments in England are now among the highest in the world.
Further information at www.themdu.com/faircomp
This guidance was correct at publication 23/11/2018. It 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.