Clinical negligence litigation – Is there a better way?

For decades, people have been decrying the huge financial cost – not to mention the far greater human cost – that clinical negligence litigation has for the NHS. As a charity that works both for patient safety as well as access to justice, AvMA has also long argued that there has been a long-standing failure to learn lessons for improving patient safety from litigation. There is precious little evidence of this happening on any significant scale. With ever-increasing financial pressures affecting the NHS, a number of new approaches to dealing with clinical negligence are being proposed across the United Kingdom. The Scottish Government have been consulting on how they plan to move forward following years of pontification over the recommendations of an expert advisory group for a ‘no-fault compensation’ scheme. What they have come up with are proposals for a so-called ‘no-blame redress scheme’. While on first sight the proposals are not as sweeping as the original, they are quite radical. The proposed scheme would apply to ‘claims’ of under £100,000 value, which is about 70% of existing claims in Scotland. Its most radical aspect is that, as well as not requiring litigation to gain compensation, the eligibility criteria are based on ‘avoidability’ and ‘reasonable’ treatment. The scheme would provide ‘compensation quickly and fairly where . . . the harm would have been avoided by the use of reasonable care’. So far, so good. There are many advantages to using the ‘avoidability test’. It should mean that more people qualify for redress than would do under the legal test of medical negligence. It means you don’t need to point the finger of blame and pin ‘negligence’ on an individual, and it is more in tune with patient safety – looking at root causes, system failures and how such incidents can be prevented. However, the consultation document is very lacking in detail. Depending on that detail, it could be a radically different approach which is better for patients and for patient safety or it could be a disaster. More certainly is needed over the meaning of ‘reasonable’ care. There is no mention of independent legal advice for patients. It is proposed that the scheme is not independent. In fact it is administered by the very organisation that currently defends claims against the NHS in Scotland – the Central Legal Office. Worse still, a nasty surprise with huge implications for medical negligence victims with larger claims nothing to do with the redress scheme is tucked away at the back of the consultation. It is proposed to repeal the legislation which allows successful claimants some choice over their care packages and the ability to purchase services from private providers. They would be at the mercy of what the NHS/local authorities decide to give them or can afford – just like anyone else. What will happen in Scotland remains to be seen but it will certainly be interesting. Whereas in England, we have the bizarre situation of Government policy on civil litigation seemingly being driven by the Department of Health in an attempt to save money for itself, rather than by the Ministry of Justice. That sets a worrying precedent in itself. However, the ‘fixed recoverable costs regime’ it is proposing to impose on clinical negligence claims has huge dangers for both access to justice and patient safety. It may not be possible for claimants, especially those with lower value claims, to find a solicitor who could afford to represent them. It may encourage more of a ‘deny and defend’ culture in the NHS where defendants could be safe in the knowledge that if they deny liability it simply won’t be feasible for them to be challenged. That in turn could be very damaging for patient safety. Whereas legal challenges currently mean that the NHS is brought to a realisation about its failings, these cases would be assumed to hold no lessons in the future. At the time of writing, the Department of Health is about to publish its consultation (expected in July 2016). AvMA has been lobbying hard for a more enlightened approach that takes both access to justice and patient safety more seriously. Watch this space for what we think about what does emerge.