NHS Resolution data dive and mediation dominate discussion at Clinical Negligence Debate

NHS Resolution will continue to collect data and amass a level of granularity that will allow it to carry out a ‘deep dive’ of the information and discover the main causes of claims, attendees heard at the Clinical Negligence Debate in Manchester last week.

Attendees of the Clinical Negligence Debate sponsored by Hayes Medicals, representing claimant and defendant law firms from across the country, heard from Denise Chaffer, director of learning and safety at NHS Resolution, about the organisation’s work in safer maternity care.

As director of learning and safety, Chaffer, a registered nurse and midwife, is working to help the NHS become the largest learning organisation in the world. Maternity was identified as an area that could aid this education drive, particularly as it makes up 10% of clinical negligence claims volume but 48% of its cost.

NHS Resolution’s focus on safer maternity care was justified last year, with the publication of its latest annual report and accounts, which showed the volume versus value headline, but also a 2% drop from 2017’s record volume high of 50%.

In the past few years, NHS Resolution has developed several strands of work to improve safety in maternity care, including the early notification and maternity incentive schemes.

Both include a focus on learning through the capture of data, working collaboratively with royal colleges and bodies on patient safety and disseminating outcomes on a national basis, according to Chaffer.

Questions from the audience at the Clinical Negligence Debate, held at the Midland Hotel in Manchester on 28 February, centred on the root causes of clinical negligence claims, with attendees asking what, if anything, NHS Resolution could to detect and challenge low staffing levels and poor resources.

Chaffer said that these undoubtedly play a part in clinical negligence claims, but that any one situation is more complicated than simply the number of medical professionals present. NHS Resolution is working to understand the underlying issues at a granular level, through a ‘deep dive’ of the information collected from schemes such as early notification.

NHS Resolution has also been focused on finding out what the families involved in clinical negligence expect, as well as the potential claimants themselves and NHS staff.

Chaffer said that often, all parties want the same things. They generally want an explanation, to be heard, an apology or the chance to apologise, assurances that the NHS will learn from any mistakes, and information about support, including how they might take their complaint further.

Another opportunity for potential claimants to be heard is during mediation, which was the topic of a panel discussion at the Clinical Negligence Debate, featuring independent mediator Quentin Smith, as well as NHS Resolution partners Paul Balen, director of Trust Mediation, and Claire Petts, partner and head of UK healthcare team at Clyde & Co.

Mediation’s use to settle clinical negligence disputes is on the rise, with Balen noting a significant increase in mediations under the NHS Resolution scheme.

The upsides far outweigh the downsides, according to the panel, while providing the parties involved an opportunity to be heard that they might not otherwise have had.

Smith pointed out that mediation is a tool in the kit rather than the only means to resolve disputes, and can be used to discuss and find a resolution to only one aspect. He said: “It’s about keeping one’s mind open to what can be achieved.”

Petts argued for greater use of mediation pre-action, and predicted there might be a compulsory requirement for some kind of alternative dispute resolution in clinical negligence in the future.

Elsewhere during the day, attendees were treated to an overview of the Civil Justice Council Clinical Negligence Fixed Costs Working Group’s recommendations on fixed recoverable costs in low-value clinical negligence claims, from Suzanne White, who sits on the executive committee of the Association of Personal Injury Lawyers and is head of the clinical negligence team at Leigh Day.

The recommendations are yet to be delivered, but White stressed that “patient safety has to be a part of the conversation” about fixed recoverable costs.

On the subject of reform, Howard Elgot, a barrister at Parklane Plowden Chambers, provided an update on the Civil Liability Act-mandated changes to the personal injury discount rate. The government closed its call for evidence on the subject at the end of January, with feedback expected soon.

Elgot said a decision on the level at which the discount rate will be set for the next three years has to be given by 7 August under the terms of the Civil Liability Act.

A panel discussion followed this update, with Mike McKenna, chair of the clinical negligence sector focus team at the Forum of Insurance Lawyers and a partner at Hill Dickinson, arguing that changes needed to be made to the discount rate, because the current -0.75% had extracted too much cost from an already underfunded NHS.

Stephen Webber, chairman of the Society of Clinical Injury Lawyers and head of the claimant division at Hugh James Solicitors, argued against the change from ‘very low’ risk investments for claimants’ damages to an assumption that they will select more risk than a very low level, but less risk than would ordinarily be accepted by a prudent and properly advised individual investor.

Webber is worried that this change will result in the most vulnerable claimants taking greater risks with their settlements.

The Clinical Negligence Debate, co-chaired by Emma Hallinan, director of claims policy and technical at the Medical Protection Society, and Peter Walsh, chief executive of Action against Medical Accidents, also featured presentations on expert witnesses, alternative solutions to clinical negligence cases and more.

Rebecca Fenton, managing director of Hayes Medicals, headline sponsor of the Clinical Negligence Debate, thanked everyone for attending the event. She added: “We hope you enjoyed the opportunity to meet up and share opinions. It was great to see so many people able to join us and partake in the debates, in particular the discussions around fixed recoverable costs, which continues to be a topic of great interest.”

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