By: 20 July 2020
NHS Resolution: provision for clinical negligence falls as Covid-19 impact remains unclear

The balance sheet provisions of NHS Resolution for secondary care now stand at £82.8 billion, a slight decrease on the previous year’s equivalent figure.

NHS Resolution’s report and accounts for 2019/20 pinpointed to reductions in expected future claims inflation as the reason for the fall, from £83.4 billion.

Other positive trends include a continued reduction in court proceedings and a decline in average claimant legal costs.

While new clinical negligence claims increased by 9.35%, this is against a backdrop of increased NHS activity and increased numbers of incidents being reported, such as those arising from mesh.

Claims for serious injuries at birth have shown small declines for three successive years and are now at their lowest level for more than 10 years.

Maternity continues to dominate claims costs, however, with continuing increases in claims values, representing almost 70% of the cost of harm.

The early notification scheme, implemented in 2017 and requiring all NHS trusts to report within 30 days maternity incidents of potentially severe brain injury, resulted in early admissions of liability being given to 24 families within 18 months of the birth, according to results released last year.

Effective partnership working, in maternity, general practice and across the healthcare and justice systems is described in NHS Resolition’s annual report as a feature of the year and is key to its strategy to resolve cases fairly and learning from harm.

NHS Resolution has noted a shift in how mediation is viewed by the clinical negligence legal market and called it a welcome signal of an increasingly collaborative approach for the benefit of patients and healthcare staff.

Commenting on the annual report and accounts, Helen Vernon, chief executive of NHS Resolution said: “We have seen a more collaborative approach to investigating claims for compensation across the legal market. Litigation has reduced for the fourth year running and mediation is now seen as mainstream. The pandemic has placed enormous pressure on our colleagues across the NHS and it has been encouraging to see remote mediations taking place so that cases can continue to be resolved without added stress to patients and those who care for them.”

“Together with the delivery of a new indemnity scheme, which has provided much needed assurance to those delivering healthcare during the pandemic, there is much to build on so we can see longer term benefits from these changes.”

The impact of the coronavirus (Covid-19) pandemic on NHS Resolution and its aims and objectives is unclear, given the dates that this report and accounts cover.

But, writing in his foreword, NHS Resolution chair Ian Dilks said the pandemic had affected the way the body operated, requiring staff to work remotely and changes to its interaction with care providers to reduce the burden on them at a time of severe strain.

NHS Resolution also created the Clinical Negligence Scheme for Coronavirus to support rapid changes in care provision resulting from the pandemic.

Dilks said: “It is too early to assess the long-term impacts of Covid-19 on issues such as future claims frequency and cost and the demand for our advice services.”

“We do not expect our strategy or the main elements of our business plan to change but inevitably there will be some changes, in particular to the speed at which plans can be implemented. For us these are important issues but they are of course secondary to the tragic loss of life suffered by so many people and the impact this will have on the bereaved.”

Responding to publication of the annual report and accounts for 2019/20, Dr Michael Devlin, head of professional standards and liaison at the Medical Defence Union (MDU), said: “The cost of clinical negligence claims at this time of national crisis should concern us all. Reports today suggest the government is set to announce an extra £3 billion to help the NHS prepare for a second wave of the coronavirus.”

“It is a sobering thought that over two thirds of this figure would be swallowed up by the amount paid out by NHS Resolution over the previous year through its clinical negligence schemes. In 2019/20 £2.32 billion was paid, a figure that has doubled in the five years since 2014/15.”

“While future liabilities have not increased this year, we mustn’t be complacent. Claim numbers have increased by 6% in secondary care and we are concerned that they could increase further as a result of the aftermath of the Covid-19 pandemic.”

“Every example of negligence takes its toll on the patients and families involved, but the compensation being paid out puts enormous pressure on NHS funding, especially at a time when the NHS needs to recover from the pandemic.”

Dr Devlin continued: “The pandemic has provided us with a golden opportunity to re-evaluate what is important to us as a society. It is vital that the government acts to ensure that the NHS is exempted from Covid-19 related litigation, and the additional distress and anxiety it inevitably causes.”

“And this should be coupled with tort reform to tackle the sums being lost to front line clinical care through unsustainable compensation payments.”

The MDU’s fair compensation campaign is calling for reforms including repeal of Section 2(4) of the 1948 Law Reform Act requiring patients treated by the NHS to be compensated for negligently caused damage on the basis that all their future care will be provided in the private sector.