Reform, but at what cost?

Andy Cullwick, head of marketing at First4Lawyers

With reform of clinical negligence the next objective of the UK government, there appear to be more uncertain times ahead for claimants and those who represent them

The end of this month marks the first anniversary of the Official Injury Claim (OIC) portal, but even for those behind the system, there’s little to celebrate.

We await data from the final quarter, which is expected to be published in June or July, but it’s unlikely to show much improvement on what has been a dismal performance so far.

While the government has shelved plans for further reforms to personal injury—including a recent announcement that extending fixed recoverable costs to cases up to £100,000 was to be postponed by six months—it has instead now turned its attention to clinical negligence.

For claimants and those who represent them, there appear to be more uncertain times ahead.

Official Injury Claim portal

The portal, which launched on 31 May last year to simplify the claims process for victims of lower value collisions, registered just shy of 210,000 cases in its first nine months, compared to the average 650,000 recorded annually prior.

Data from the Compensation Recovery Unit also shows motor claims are at a historic low.

While the portal may have succeeded in eliminating potentially fraudulent claims, and while there may be fewer vehicles on our roads, such a dramatic drop cannot be attributed to this alone.

The reason is more likely that injured people are being put off from claiming by an overly complex and poorly marketed system. Data from the first nine months showed that around 90% of users are still instructing a lawyer to help them navigate the portal; the very thing it aimed to stop.

Just a third of claims lodged since the launch have been solely for whiplash or whiplash with minor psychological injury, meaning they can be dealt with under the fixed tariff. Furthermore, as many as one in four seek an uplift in damages—claiming exceptional injury, exceptional circumstances or both—suggesting they may not understand how it works.

Perhaps the most disheartening statistic of all is that just 8% of cases have settled so far, with the average time that it took creeping up from 85 to 139 days.

Many cases that involve both tariff and non-tariff injuries are also on hold until test cases are heard to decide how they should be valued.

In a long-awaited response to part two of its Reforming the Soft Tissue Injury Claims Process consultation, which closed in January 2017, the Ministry of Justice (MoJ) announced in March that it did not intend to proceed with further whiplash reforms. It said, instead, it would continue to work with key stakeholders to deal with any issues, although it is so far yet to answer calls for a full and transparent review of the portal.

Clinical negligence reforms

The government is now proposing radical changes to the way clinical negligence claims are handled with the introduction of fixed recoverable costs, limiting the amount that can be recovered by claimant lawyers in cases where damages do not exceed £25,000.

A report by the Health and Social Care Committee has also called for a complete overhaul of the system and the introduction of an independent administrative body to investigate cases and determine compensation.

Such reform is necessary to cut the “unsustainable” cost of legal bills falling on the NHS, it said, failing to mention that it is NHS Resolution (NHSR) costs that have risen as opposed to those of claimant lawyers, which actually fell in 2020/2021, according to the body’s own accounts.

NHSR’s inability to accept liability even in the face of overwhelming evidence is a key reason why so many cases drag on longer than necessary.

Furthermore, claimant lawyers do an enormous amount of due diligence at the outset to filter out spurious claims and ensure that NHSR is only presented with those which have merit.

The number of patient harm events reported by the NHS itself stood at 2.1 million in the year to March 2021.

Imposing fixed recoverable costs could lead to specialist firms turning away work if they are not guaranteed a fair fee for their time and resources. Claimants may be driven to use less experienced firms, creating a two-tier system where only those with higher value claims can access the specialist service.

Replacing lawyers with an administrative body that is part of the NHS is akin to the fox guarding the chickens. It’s sad to say but many victims of clinical negligence have to fight to uncover the truth, and, without the help of lawyers, many injustices would not be brought to light.   

Lawyers also drive learnings, so mistakes are not repeated.

The government is yet to announce its next steps but perhaps, rather than pointing the finger at claimant lawyers, it should look at why so many people feel litigation is their only option and seek to change that instead.

Main image: Canva / Author photo and logo: First4Lawyers

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