Clifton-Brown: Less adversarial system needed
It is “unacceptable” that so much public money is spent on legal fees for clinical negligence claims and the government needs to take action, MPs said today.
Parliament’s public accounts committee (PAC) identified “disproportionate” costs in lower and medium-value claims one of the problems in clinical negligence that the government has failed to tackle since the PAC’s first report on the issue in 2002.
Its liability for clinical negligence has quadrupled over 20 years to £60bn in 2024-25 – it is the second largest provision on the government balance sheet after nuclear decommissioning – and the annual cost of settling claims has more than trebled in real terms in that time to £3.6bn.
But the Department for Health and Social Care (DHSC) “is unable to show any meaningful action taken to address this, and that the NHS has not done enough to tackle the underlying causes of patient harm”, the PAC said.
“The report paints a picture of a system overwhelmed by safety recommendations that it cannot action, with evidence that, despite the NHS in England keeping a plethora of data on patient harm, its fragmented nature does not amount to good information which could identify and address clinical negligence’s underlying causes.”
The report highlighted their sharp rise in legal costs over the years, with claimant legal fees increasing in real terms from £148m in 2006-07 (in 2024-25 prices) to £538m in 2024-25.
During the same period, NHS’s legal costs increased in real terms from £76m to £159m but fell as a share of total settled costs (from 7% to 4%). NHS Resolution told MPs that it had broadly kept the increase in defence costs level with inflation by using fixed and capped rates for its external legal support.
It also claimed to have saved over £138m in 2024 by challenging the bills presented by claimant lawyers.
The report said: “At 19% of total settled claim costs it is unacceptable that so much taxpayers’ money continues to be spent on legal fees. NHS Resolution has worked hard to increase the number of claims resolved without litigation (83% in 2024-25, up from 66% in 2006-07). It has also expanded its use of alternative dispute resolution and mediation.
“There are considerable financial benefits to these approaches which have been well received by the legal sector. However, we are extremely concerned that low-value clinical negligence claims (damages of £25,000 or less) cost far more in legal fees than victims receive in damages, with a 3.7:1 cost-to-damages ratio.”
The PAC recommended that the DHSC should develop alternative dispute mechanisms “to speed up decisions and reduce costs for less complex cases” – keeping a case out of litigation saves on average £96,000 in claimant legal costs, according to NHS Resolution.
As part of this, it should look at international examples, such as in New Zealand and Sweden, of non-adversarial and ombudsman models “and assess how our ombudsman system could be improved”.
The DHSC had planned to introduce a fixed recoverable costs scheme for cases worth up to £25,000 in April 2024 but it did not – and has not outlined its intentions since. The PAC said it needed to “clarify its position… at the earliest opportunity”.
The committee expressed frustration that “on multiple occasions the department told us that it was unable to comment on many aspects of current policy as a recent review into clinical negligence by David Lock KC was still being considered by ministers”.
Mr Lock was a justice minister at the turn of the century in the Labour government but lost his seat in the 2001 election, after which he returned to the Bar, specialising in NHS, social care and public law. Since last summer, he has been working as an expert advisor to health secretary Wes Streeting.
His review should be published within six months of it being completed, the PAC said.
The MPs said that, within two months, they wanted to see an operational plan from government to tackle clinical negligence – including a better complaints system – a national framework for improving patient safety with clear annual improvement targets, and a national system for sharing data between NHS trusts.
The report called in particular for the DHSC to learn lessons from its failure to improve maternity care in England, and set out how it plans to reduce the incidence of harm and the costs of claims in this area.
NHS Resolution told the committee that high-value claims – often associated with brain injury suffered in maternity care – represented 2% of all claims by volume but 68% of total payouts.
The report questioned too why claims were settled on the basis of how much a victim’s care would cost in the private sector, rather than in the NHS. Stemming from a law from 1948, this was “a major contributory factor” to the increasing cost of very high-value cases.
“It is not clear how far the taxpayer is paying twice for clinical negligence – once when a victim is compensated, and then again if the victim uses the NHS for their subsequent care rather than the private sector.
“The DHSC should set out how it will guard against the risk of paying twice for the care of those it has harmed.”
PAC chair Sir Geoffrey Clifton-Brown described the provision for clinical negligence as “a swelling accounting of profound suffering”.
He went on: “Each case can represent unspeakable devastation for the victims involved, and the overall picture is of a system struggling to keep its patients safe from avoidable harm.
“Indeed, the rising costs of such claims are diverting resources away from frontline care badly in need of them. That is why it feels impossible to accept that, despite two decades’ worth of warnings, we still appear to be worlds away from government or NHS engaging with the underlying causes of this issue…
“Government must move at pace towards a less adversarial system, reducing costs and ensuring that claims are paid more quickly for the benefit of families involved.”
In a report last October, the National Audit Office said NHS Resolution should investigate the level of fees claimant clinical negligence lawyers deduct from clients’ damages as part of efforts to control the cost of claims.
Leave a Comment