How Legislative Review Could Preserve the Future of the NHS

In February, before the COVID-19 pandemic shut down the UK, the National Audit Office declared the NHS ‘seriously financially unstable’. Yet, this pandemic has shown that the Government is willing to and can act quickly to introduce new legislation in a crisis situation. Once we move away from the peak of the crisis, the Government must ensure the laws in place to protect our health service are serving their purpose. This should begin with a review of the funding of major trauma treatment and the Injury Cost Recovery scheme (ICR). The current means of funding provides one of the most glaring examples of how a simple review of existing legislation could provide a financial boost to the NHS, rather than lining the pockets of the insurance industry.

The legal duty for the insurance industry to pay the healthcare costs of individuals involved in road traffic accidents dates back to the Road Traffic Act 1930.

In my role as Head of Major Trauma at Moore Barlow, I have repeatedly witnessed the exemplary treatment provided to victims who have suffered life-changing injury as a result of a major trauma. However, it is also true that NHS Trust’s are facing significant financial pressures that has affected patient care. At Moore Barlow, we are committed to a patient-centred approach, and it for this reason I have dedicated the past five years to campaigning for NHS reform. It is also why our firm set up the UK’s first major trauma service in collaboration with the NHS. The service identifies the needs of a patient at the outset to ensure that clients are able to move onto the right care pathway and secure appropriate rehabilitation support as soon as possible.

However, in the 17 years following the introduction of the Health and Social Care Act, the scheme has not been reviewed and no longer meets the objectives the law set out to achieve.

The funding of major trauma treatment is a pertinent example of how, without review, current legislation is contributing to the NHS’s existing financial problems. The legal duty for the insurance industry to pay the healthcare costs of individuals involved in road traffic accidents dates back to the Road Traffic Act 1930. More recently, the Health and Social Care Act 2003 refined the insurers’ obligation to allow for the recovery of NHS charges in all cases where people claim and receive injury compensation. This regulation, which came into force in 2007 as the NHS Injury Costs Recovery (ICR) scheme, was designed so that the NHS should not have the burden of paying for the treatment of patients injured by an insured third party. The aims of ICR were laudable and the intent was to maximise the funds available to NHS trusts to treat trauma patients.

The latest statistics available, from a 2010 National Audit Office report, estimated the cost of trauma treatment to be £300-400 million a year.

However, in the 17 years following the introduction of the Health and Social Care Act, the scheme has not been reviewed and no longer meets the objectives the law set out to achieve. The current cap on costs recovery is too low and has not kept pace with medical costs and inflation. This has resulted in the unintended consequence of our NHS footing the bill for trauma treatment. With the coronavirus epidemic having significantly stretched the NHS’s resources further, there needs to be an urgent review of whether the ICR scheme is fulfilling its intended purpose as set out in Health and Social Care Act 2003. The current regulation is a barrier to the NHS being sustainably funded long term.

The pandemic has highlighted the unbalanced nature of the relationship even further.

The latest statistics available, from a 2010 National Audit Office report, estimated the cost of trauma treatment to be £300-400 million a year. From 2018-19, the last fully reported financial year, the NHS recouped £200 million from the Injury Costs Recovery scheme. Factoring in how medical costs have risen above inflation since 2010, a saving of £200 million to the NHS is a very conservative estimate. Money that could be used to buy ventilators, tests or whatever equipment is needed to future-proof the resources of the NHS. If our health service stops giving away half of their major trauma funding to insurers, it can be modernised and properly resourced.

During this difficult time, it has been encouraging to see a heightened sense of appreciation for the NHS.

The pandemic has highlighted the unbalanced nature of the relationship even further. With a reduction in major trauma incidents following the decrease in road traffic, there will be significantly less claims for treatment made. Insurers will have made thousands of pounds of savings, whilst paradoxically, the NHS will see a stark reduction in revenue received. A select few insurers have taken the proactive step of giving money back to customers where they have seen a significant reduction in claims. It would be the right thing to do for insurers to look at how they can channel their savings back into the NHS.

There is now a vital opportunity to put measures in place to secure the NHS’s long-term future and this starts with a simple review of how major trauma treatment is funded.

During this difficult time, it has been encouraging to see a heightened sense of appreciation for the NHS. It has also been heartening to see fundraising efforts from the public raising millions to support our frontline workers. Going forward, we now need to see the Government take similar action for our health service, ensuring that current regulation is fit for purpose and directs money to the NHS. Laws that govern healthcare must benefit the NHS, not the profit lines of insurance companies. There is now a vital opportunity to put measures in place to secure the NHS’s long-term future and this starts with a simple review of how major trauma treatment is funded.