Calls from health leaders in February in a letter to Justice Secretary David Gauke urged for reform to payments for negligence claims against the NHS. Rob Dempsey, personal injury lawyer at law firm Roythornes Solicitors, discusses the proposed plans and its impact on potential claimants.
In 2017, changes to the calculation used to work out how much a victim of negligence should receive upfront to cover a lifetime of care was reformed by the government. Whilst some would argue this ensures claimants are compensated adequately for future care, others raise concerns that as a consequence, the NHS is required to make higher lump sum payments.
This, so the letter states, is ‘unsustainable’ and is diverting vast amounts of money from front line care.
Furthermore, it says: ‘We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay.’ Although I am pleased to see some acknowledgement of ‘reasonable compensation’ for potential claimants, one must also consider in more detail how costs are allowed to escalate.
Once it is apparent that there has been substandard care, the parties should focus on resolving matters quickly and efficiently. It should be remembered costs of clinical negligence claims include the costs of solicitors acting for the NHS who incur significant fees in defending claims. All too often the claim becomes prolonged because straightforward claims are defended unnecessarily or resources are expended in trying to argue down the value of the claim.
Figures suggest that NHS spending on negligence claims is around £1.7 billion a year and of this sum, the vast majority goes to victims of clinical negligence. The compensation helps people who have suffered loss through no fault of their own or to the families of people who have died as a result of clinical negligence. Payments will cover loss of earnings, ongoing care, adaptations for the home and medical treatment.
If these costs were not recovered as part of a clinical negligence settlement, claimants would become dependent upon the social care system and the burden would again fall back to the public purse and ultimately the NHS.
Of course, if there were fewer avoidable errors in the first place then the costs of negligence claims would inevitably decrease, but this is part of a much wider sector issue. Not all mistakes can be eliminated, but alleviating strains on the NHS with understaffing and underfunding could see fewer mistakes being made.
No one is suggesting the NHS should ‘roll over’ each time they are faced with a claim, but it is certainly often the case that early acceptance of fault and a prompt settlement discussion would reduce costs.
The Ministry of Justice has said it had set out proposals for a ‘fairer way’ of setting payout levels. However, any proposals need to be fair and just for all involved, whether it be the NHS or those claimants whose lives have been irrevocably changed by shortcomings in patient care.