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The NAO does not understand clinical negligence

The recent publication of the National Audit Office’s (NAO) Managing the costs of clinical negligence in trusts report, was beyond disappointing and brought a plethora of misinformed comment from the media, writes James Bell.

Clinical negligence lawyers everywhere will have been disappointed, albeit not entirely surprised, with the findings from the long-awaited NAO report.

The NAO have approached this issue with a needlessly narrow focus and with scant recognition to the recommendations it made to the NHS to reduce clinical incidents in 2001.

The predictable headlines that followed put the blame for the rise of clinical negligence costs firmly at the door of ‘ambulance-chasing’ clinical negligence lawyers. Yet, the continued focus on claimant lawyers as a solution for all the NHS’s financial ills is misguided and disproportionate.

The reality is that our fees are already tightly controlled, capped and limited due to recent reforms; they have to be “reasonable and proportionate” before they are paid and the courts rightly already hold the power to reduce any bill found to be excessive.

Clinical negligence lawyers everywhere know that delays caused by trusts and NHS Resolution can be unrelenting and are hugely distressing to clients. Often legal bills are massively increased as a result of the NHS’s failure to admit fault at an early stage and the way it conducts cases.

While the narrative remains solely on claimant lawyers, nothing will change.

Then, as if the report itself wasn’t bad enough, the ensuing debate reached a new low when Guardian columnist, Polly Toynbee suggested that as a result of the NAO’s report, it was now time to bring back crown immunity for the National Health Service.

Ever since the Crown Proceedings Act was passed in 1947, the NHS has been liable for all acts of negligent injury. To abolish it now would result in a two-tier legal system. Those of us who rely on the NHS for our healthcare would be prevented from claiming compensation if we or our loved ones suffered any kind of injury – even a brain or spinal injury which meant we needed 24-hour care for the rest of our lives. On the other hand, those members of society who are fortunate enough to be able to afford private healthcare could bring claims, as crown immunity does not apply to a private company.

Patients have few avenues to follow to pressure the NHS to improve. Litigation is one of them and should never be removed.

The report also failed to make any allowance for a number of changes introduced that have not yet had enough time to be properly assessed. For example, I expect the Duty of Candour legislation introduced in late 2014, will lead to early admissions of negligence – and a reduction in costs. However, its implementation is too early for this report.

NHS treatment of whistle-blowers is also very poor. Listening to whistle-blowers and creating a culture that values them could save the NHS a fortune. Rogue surgeons such as Ian Paterson could have been stopped much earlier if the culture of the NHS was improved. The NAO has not addressed this at all.

The changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) have also not been fully quantified as yet. There are thousands of pre-LASPO cases that have not yet concluded, which will inevitably skew the NAO data.

Further, Lord Justice Jackson’s July report on fixed recoverable costs has recommended “a bespoke process for clinical negligence cases up to £25,000”. Implementation of such a scheme will lead to significant costs savings.

Once all those changes have worked their way through the system, I would expect to see a very different NAO report.

Perhaps the report’s greatest flaw is its failure to make any proper assessment of NHS lawyers. Performance of NHS Resolution can and should have been benchmarked with reference to other insurers and claims handlers, and the NAO have offered no explanation as to why this has not been done.

The NAO has unquestionably failed patients with this report. Its failure to thoroughly audit the NHS may have long-term irreversible damage for I fear the report will now be used as the basis for future clinical negligence reform.

This article first appeared in The Law Society Gazette, October 2017.