Niall Dickson:
The NHS is now spending vast amounts on meeting clinical negligence claims, and the political class seems incapable of doing anything about it.
It would take 13 years, and every penny of the extra Brexit money demanded by Boris Johnson, to pay off the current liability for claims in England – a staggering £65billion. The annual cost last year alone was £1.7billion, money that would otherwise be available to provide care and treatment for millions of patients. On average a front-line hospital will pay around 2 per cent of its income on clinical negligence claims every year; some are paying a lot more than that. Individual claims can amount to well over £10million. And the value of these claims against the NHS is rising year after year.
This is not because NHS care is becoming less safe – quite the contrary. It is because the current system, government policy (or lack of it) and the courts’ interpretation of their responsibilities have taken us to a terrible place.
At the NHS Confederation, we fully accept that there must be reasonable compensation for patients harmed through clinical negligence. Yet this must be balanced against society’s ability to pay. This is money that could be spent on front-line care: the rising cost of clinical negligence is already having an impact on what the NHS can provide.
We have joined forces with a range of interested organisations to urge David Gauke, the new Lord Chancellor, to act. As a start, we desperately need him to implement reforms to how compensation payments are calculated. A decision made by his predecessor to change the rate at which damages in personal injury cases are worked out has had the disastrous effect of further inflating awards. This prompted the Chancellor, in his Budget speech last year, to set aside £5.9billion for the three years up to 2020, to “protect the NHS from the effects of the changed personal injury discount rate”.
But we also urgently need more fundamental reform. We now have a culture where too many professionals are frightened of being sued, and where this affects the way they practise medicine.
Defensive medicine can cause practitioners to intervene too much and too often, subjecting patients to unnecessary tests and investigations and subjecting the health service to unnecessary costs. It can also foment a culture that is less open, with doctors and other health professionals being less willing to admit mistakes. In short, a binary litigious environment dominated by fear and blame does not help.
We need to develop an open culture which encourages learning when things have gone wrong. It is incumbent on everyone in the health service to make sure the care provided is as safe as it can be. We need to understand better what is driving these claims, and how to support families affected with openness and honesty when mistakes do happen.
Other countries have found better ways of achieving a balance between the legitimate need to compensate those who have been harmed, and what is reasonable and affordable for society to pay out. This is all the more pertinent given we have a healthcare system that is free at the point of use and, in most cases, more than capable of meeting the healthcare needs of the population.
Calling for a comprehensive package of legal reform of anything in the current political and parliamentary logjam may seem a lost cause, but there will come a time when parliamentarians can think of something other than Brexit, and we need to lay the ground now.