Forster: Focus should be on avoidable harm
There is no radical ‘silver bullet’ solution to achieve “significant savings” in NHS clinical negligence compensation costs – but legal costs are not the real problem, MPs have been told.
The Association of Personal Lawyers (APIL) presented a report to MPs which showed that clinical negligence claims and legal costs accounted for 1.6% of NHS England’s annual budget for 2025/26, down from 1.9% in 2019/20.
“This context shows that the provision of compensation to victims of negligence is not one of the key challenges that threatens the financial sustainability of the NHS,” it said.
During the past decade, less than 2% of the real-terms increase in clinical negligence spending was the result of victims’ legal costs.
“There has been a particular focus on claimant legal costs in claims where compensation is less than £25,000. In reality, these costs represent just 3% of all clinical negligence spending.”
Researchers said that just over half of what victims receive in compensation covered social care costs, which could be “incredibly expensive” and was not a service available on the NHS.
“However, inflation associated with these care costs is rising at almost twice the rate of wider inflation. This means that, if they are just to keep up with these costs and pay for their care, injured victims require much higher compensation.”
On NHS Resolution (NHSR), APIL said it was taking the service over two years to settle clinical negligence claims, with negligence victims waiting on average, 10 months longer for their claim to settle.
Since 2013/14, there had been a 58% increase in the time it took NHSR to settle claims.
“Victims with the most severe injuries have been hardest hit: those with the highest-value claims currently have to wait an average of over eight years for their claim to settle. This is almost two years longer than in 2013/14.”
If just 10 babies were spared from catastrophic harm caused by NHS negligence, it would save the health service £112m, APIL said
The report called for “cultural change within the NHS” to prevent harm from occurring in the first place and implementation of the statutory duty of candour in the Public Office (Accountability) Bill or Hillsborough Law, due to come into force next April.
Delays in the claims process could be reduced by full compliance from all parties with the pre-action protocol for clinical disputes, and amendments could be made to the protocol “to bolster its effectiveness and to ensure meaningful investigations occur at the earliest possible stage of the claim”.
APIL said it was publishing its report ahead of a government announcement, expected this autumn, on spending on NHS clinical negligence compensation claims.
On publication by Parliament’s public accounts committee in January of a report on clinical negligence costs – which in turn a report by the National Audit Office – chair Sir Geoffrey Clifton-Brown called for a “less adversarial system” [1] with reduced costs.
He said it was “unacceptable” that so much public money was spent on legal fees for clinical negligence claims.
No-fault compensation has again been floated as an alternative, but APIL said this would lead to an 18-fold increase in spending on compensation claims, as so many more claims would lead to compensation than now.
Another oft-made suggestion is to repeal section 2(4) of the Law Reform (Personal Injuries) Act 1948, under which victims of negligence are able to claim compensation for private healthcare costs and the availability of NHS treatment is disregarded when calculating compensation.
But APIL said government data found no evidence that injured claimants were going on to use the NHS for treatments covered by their compensation.
APIL president Guy Forster, who represents families in cerebral palsy and neonatal legal claims, commented: “A huge component of the NHS’s compensation bill is for avoidable harm in maternity care. The children in these cases are some of the most catastrophically injured patients we see.
“The cost of looking after a brain-damaged child for life is inevitably expensive.”
He went on: “The reality is that there is no radical ‘silver bullet’ solution which would achieve any significant savings, except to reduce the avoidable failures in care which cause harm, upheaval, and suffering to patients and their families.
“Anything else would only tinker around the edges and deny victims proper care, recovery, and access to justice.
“When you examine the evidence, it always boils back down to the need to cut the harm. The savings will then follow.”