NHS Confederation group demands action to reduce clinical negligence costs

A coalition of organisations led by the NHS Confederation has called for urgent action to reduce the spiralling cost of medical negligence claims in England, after £1.7 billion was paid out last year alone.

In a letter to justice minister David Gauke, the organisations urged him to bring forward important reforms in the handling of clinical negligence claims.

It follows a change last year to the personal injury discount rate from 2.5% to -0.75%. This has pushed up compensation payments in personal injury cases where there is an element of future care costs and earnings, NHS Confederation said in a statement on the letter to Gauke.

“We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay,” according to the letter.

“This is money that could be spent on frontline care. Given the wider pressures on the healthcare system, the rising cost of clinical negligence is already having an impact on what the NHS can provide.”

On average, a frontline hospital will pay around 2% of its income on clinical negligence claims every year. “The value of claims in the pipeline stands at a staggering £65 billion,” NHS Confederation said in its statement.

NHS Confederation coordinated the letter, which was signed by the Academy of Medical Royal Colleges, British Medical Association, Family Doctors Association, Medical Protection Society, Medical Defence Union (MDU) and the Medical and Dental Defence Union of Scotland.

The organisations went on to say in the letter: “We welcome the decision made by the Ministry of Justice to develop and consult on proposals to reform the discount rate. These would help to make sure that the rate more accurately reflects the way in which most claimants choose to invest their compensation payments. They would help to create a fairer system for all concerned.”

“It is vital that these changes are brought in as quickly as possible, either as part of the Civil Liability Bill or through a single purpose bill.”

Niall Dickson, chief executive of the NHS Confederation, said: “The rising cost of clinical negligence is unsustainable and means that vast resources that could be used by the NHS are being diverted elsewhere.”

“We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay. Money that is used for this purpose cannot be spent on frontline care.”

The yet-to-be-published Civil Liability Bill is not expected to be considered for passage into law until October. Draft legislation on setting the personal injury discount rate is still being scrutinised.

Clinical negligence remains a controversial and much-debated issued. A recent debate in the House of Lords featured a question on Section 2(4) of the Law Reform (Personal Injuries) Act of 1948.

In response, Lord O’Shaughnessy, the parliamentary under secretary for health, said that the government is considering this difficult and complex legal issue as part of a cross-government strategy that will report in September.

Dr Matthew Lee, professional services director at MDU, said: “We welcome the intervention by Lord Starkey to ask the government what it intends to do about repealing the outdated  S2(4) of the Law Reform (Personal Injuries) Act 1948 that requires all clinical negligence defendants to pay compensation for private, not NHS care.”

“Last year, NHS Resolution revealed it had spent a record £1.7 billion in total on negligence claims against NHS hospital trusts in England—double the amount paid in 2010/11. The NHS now faces total claims liabilities of £65.1 billion in 2017/18, up from £56.4 billion the previous year.”

Lee argued: “We desperately need some balance restored to the system of compensation payments. Of course, patients negligently harmed must receive adequate compensation, but as a society we must ask ourselves whether NHS defendants should be made to pay for private care as the law still requires. Wouldn’t it be better and fairer to spend precious NHS funds on paying for NHS and local authority care?”

“Paying multi-million pound sums to individual patients diverts huge amounts of NHS money from wider patient care and must not be allowed to continue. The MDU has long argued that only radical legal reform will halt the rising costs of claims for the NHS. This must be a priority for the government.”

Mark Dugdale