MPs call for no-fault compensation in clinical negligence

Hunt: Negligence payments unsustainable

A no-fault compensation scheme for medical negligence should be introduced in England, replacing the “grossly expensive” existing system based on individual blame, MPs have said.

The health and social care select committee also warned that the government’s decision to introduce fixed recoverable costs (FRCs) for claims worth less than £25,000 “may compromise access to justice for the poorest claimants”.

Instead and in advance of the reform it recommended, the committee called for the immediate introduction of compulsory alternative dispute resolution before any court proceedings were launched alongside a standardised investigation process for medical errors.

Its report on NHS litigation reform said the focus on assigning individual fault meant process could not “inform or disseminate learning or systematically contribute to patient safety improvements”.

The MPs cast doubt on the claim that, by screening claims, specialist law firms prevent a significant cost to NHS Resolution.

“Claimant costs, however, account for a fifth of all cash payments associated with clinical negligence and witnesses highlighted that law firms gravitate towards higher-value cases, reject those that require a significant initial outlay, and are driven by the pursuit of legal fees,” it said.

“Given the skill with which law firms appear to have leveraged income from the clinical negligence market, we are not convinced that the real cost of screening cases is not eventually passed on to the taxpayer.”

The committee acknowledged there were “many excellent solicitors who act in the best interests of people who have suffered terrible trauma”.

But the testimony it received about how injured people valued their “guidance, advocacy and compassion” underlined the necessity for change, it said.

“Legal professionals will only take commercially viable cases with a prospect of success, meaning many people who have suffered harm will never benefit from expert advocacy.”

The report, which avoided using the term “no fault”, concluded: “The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning.

“We recommend that when a patient is harmed, they or their family should be able to approach an independent administrative body which would investigate their case and determine whether the harm was caused by the care they received and if, in the ordinary course of events, it was avoidable.

“The investigation would be inquisitorial, it would look at the facts of the case, and it would focus on how all parts of the system delivered care to the patient in question.

“Should it be found that the patient suffered harm because of their care, they would receive compensation.”

MPs said they recognised that their recommendations would “radically change” existing principles and, given the scale of the undertaking, “the new system would be best implemented in stages with an initial focus on the most complex and expensive cases” – birth injury claims.

The new Strategic Health Authority (SHA) the government was creating to investigate serious incidents and improve safety in maternity care could “investigate claims, establish the causes of harm and determine eligibility for compensation” under the proposed compensation regime.

The SHA should be reconstituted in a way that created “an administrative compensation body whose independence is recognised by the courts”.

MPs admitted that the “pool of people entitled to compensation” would be larger under a no-fault scheme but the “overall costs” would be lower, and there was no reason why compensation awards should be “any less generous”.

Compensation would be based on additional costs involved in topping up NHS care, not on purely private treatment, and assessment of future earnings for children aged under 18 would be based not on their parents’ income but on the “national average wage”.

Litigation would only be permitted for medical negligence victims once they had been through the administrative system.

The report said that, without having to prove negligence, someone with a claim would not need “intensive legal support”.

It went on: “It is also important to note that there is no guarantee that someone will find a solicitor equipped to provide them with the support and guidance they need. By moving away from litigation to an administrative system, patients and families would not have to enter a lottery of legal representation.”

Since the new system would “provide risk-free access to compensation which is no less generous than that awarded by the courts”, qualified one-way costs shifting (QOCS) would “become redundant”.

Any claimant who rejected no-fault compensation and pursued litigation “should have to pay the defendants’ costs” if they lost their case.

The committee warned that the government’s decision earlier this year to introduce FRCs for cases worth less than £25,000 may compromise access to justice for the poorest claimants.

“The government is right to try and rein in excessive legal costs, but until the administrative scheme we are recommending is introduced in full, it must ensure that all injured patients retain access to adequate legal representation.

“In response to this report, the government should set out the safeguards it will introduce to ensure that fixed recoverable costs do not restrict access to legal representation for the poorest and most vulnerable injured patients.”

Ahead of its reforms, the committee also recommended compulsory ADR. “This often happens before the start of a trial but should happen before the issuing of any court proceedings.

“We recommend that the government consult on the format of alternative dispute resolution and whether it should include mediation or be structured around an inquisitorial, ombudsman-style process.”

Former health secretary Jeremy Hunt, chair of the select committee, said: “It is unsustainable for the NHS in England to pay out more than £2bn in negligence payments every year – a sum equal to the cost of running four hospitals – a figure that will double in 10 years if left unchecked.

“We need a better system that learns from mistakes, following the lead of countries like New Zealand and Sweden. We must move away from a culture of blame to one that puts the prevention of future harms at its core.”

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