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The NHS is imploding: Ministers must focus

Posted on 13th September 2016

No sooner have we learnt that the Brexit campaign’s promised £350m a week was a lie, a series of five-day junior doctor strikes have been announced, alongside widespread predictions of a winter meltdown in the service. The NHS is imploding before our very eyes.

Yet, it appears that rather than tackle the root cause of these problems, claimant lawyers are again to be made the scapegoats for the NHS’s mismanagement and inefficiencies, with the introduction of fixed-fees in clinical negligence. While no date has yet been set for a consultation, a consultation is expected before December to fix costs in medical negligence cases worth less than £250,000.

In an environment where it is acceptable for a failing chief executive to leave one six-figure job and immediately walk into another, the focus on claimant lawyers as a solution for all the NHS’s financial ills is misguided and disproportionate. Ministers need to consider the following ten very good reasons why these proposals should be halted:

1. Many victims of medical negligence could be left without any means of obtaining compensation for injuries caused through no fault of their own.

Lawyers will simply not be able to take on low value cases and therefore those who have suffered life changing injuries or bereavements due to the negligence of the NHS or private providers, will be unable to gain redress or act to ensure action is taken to prevent future negligence.

2. “Smaller” low value cases are often just as complex and sometimes more so than high value cases.

The proposals, as they currently stand, demonstrate a lack of knowledge or understanding about how clinical negligence cases are actually run. A great deal of time is spent investigating claims made by patients who often lack full knowledge of what has happened to them.

There are significant hurdles that must be overcome in order to bring a successful action and victims have to bear the full burden of proving both breach of duty and causation. Unlike a large proportion of personal injury cases, a claim with relatively low value does not necessarily equate with low costs.

3. The proposals work on the assumption that there is currently no limit on fees, when in fact they are tightly controlled.

The government should not be introducing a fixed costs regime at a time when the impact of the Jackson reforms is still to be assessed. As a consequence of the Jackson reforms, lawyers’ fees are already tightly controlled, capped and limited. Costs already have to be “reasonable and proportionate” before they are paid by the insurer or NHS and the Courts rightly already hold the power to reduce any bill found to be excessive.

To seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must, from any angle, be considered to be somewhat misguided and misconceived.

4. The proposals do nothing to tackle the underlying problems behind the rising number of medical accidents.

The NHS only pays costs to claimants when it has negligently injured a patient and either loses or believes it will lose the ensuing claim for compensation. The government should be looking at remedying underlying causes of negligence by, for example, providing proper, more regular training, if they want to reduce the negligence bill

5. The role of the National Health Service Litigation Authority (NHSLA) in driving up costs needs greater scrutiny.

Often legal bills are massively increased as a result of the NHS’s failure to admit liability at an early stage. In a substantive action, much of the work carried out by claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.

Delays caused by the defendants and NHSLA can be unrelenting and are hugely distressing to clients. It should also be noted that the defendant’s solicitors are not acting on CFAs and are therefore paid regardless of the result. Consequently they have no incentive to deal with work efficiently or progress claims fairly and appropriately.

6. The most vulnerable in society would suffer.

Inevitably these proposals would mean many would be denied access to justice and those most affected would be the vulnerable such as psychiatric patients, the elderly and disabled, whose cases can be the most complex and challenging.

7. There would be a long-term impact on patient safety due to important cases not being brought.

There is a great deal of evidence to suggest litigation can drive the development of better practice, hold institutions accountable and be a force for change. It is not just about compensation that helps to rebuild lives; the process can identify systemic failings, ensure that sanctions are taken against poor and negligent doctors, promote early diagnosis and lead to significant changes and improvements in healthcare. If important cases are not brought, patient safety will ultimately suffer.

8. Legal representation at inquests would be in jeopardy.

In most circumstances the cost of representation at inquests is recoverable where there is a successful clinical negligence claim. This is likely to change with fixed fees, curtailing solicitors from obtaining crucial evidence for a claim in addition to being part of the inquiry into the cause of a death.

In these circumstances, families and friends of the deceased could be deprived of much needed support as well as help changing systems, which is primarily what families want.

9. There has not been time for a meaningful consultation on the implications and practicalities of a fixed fees regime.

According to previous ministerial comments, it appears that the government is intent on introducing a fixed-costs regime come what may and that the long-promised consultation will be nothing more than an exercise in how a fixed-costs regime should work, rather than considering how clinical negligence cases are run and the drivers behind legal costs in such cases.

Furthermore, the consultation process being run by the Department of Health (DoH) which is obviously conflicted. Given that the DoH is the negligent party when a claimant pursues a successful clinical negligence claim then, it should not be imposing a fixed costs regime on its opponents in the litigation.

10. A rise in litigants in person could actually jeopardise any savings realised.

Specialist solicitors screen most cases out, identifying when there is legal negligence as opposed to a complaint. The medical profession could be swamped by complaints that will have to be investigated or pursued either by less specialist lawyers or potentially by injured patients who, unable to obtain legal representation, will seek to represent themselves.

Nina Ali is former cardiology nurse turned clinical negligence solicitor and is a partner at leading law firm, Hodge Jones & Allen. She has a special interest in cardiac and fatal cases, as well as a keen interest in psychiatric cases and is committed to working towards ensuring the same levels of accountability that prevail in general medicine to this currently very poorly represented area.

Nina is a Law Society Accredited Clinical Negligence Panel Member, is fluent in Urdu, Hindi and Punjabi and appears on a weekly ‘Legal Hour’ on Betar Bangla radio. She is also founder and trustee of Millie Mittoo Childrens Project, dedicated to providing children of all ages the best possible foundation to achieve happy and fulfilled lives.

This article first appeared in the Huffington Post.