27 September 2017Print This Post

Spurious NAO claims are not helping the NHS or access to justice

Pipkin: time to end the political rhetoric

Posted by David Pipkin, director of Litigation Futures Associate Temple Legal Protection

National Audit Office (NAO) claims that imply excessive legal costs are the cause of rising NHS Resolution expenditure are unhelpful at best, disingenuous at worst and either way do not provide any answers to NHS problems or support genuine access to justice.

The recent NAO comments on the subject contradict themselves by stating first that no evidence has been found relating poorer patient safety to a rise in negligence costs; and then follow on by disclosing that declining performance against waiting time standards is a factor, due to delayed diagnosis or treatment. A slight anomaly, or an unexplained paradox?

Presenting on the rising NHS negligence costs at the Westminster Health Forum seminar on earlier this month, NAO director Jenny George admitted: “The truth is we just don’t have the data to draw any definite conclusions.”

There is, however, much data in circulation to provide some context. Clinical negligence costs may have quadrupled over the past decade to £1.6bn, but this represents a little over 1% of the NHS total budget.

Let’s assume those costs were cut in half overnight. Is it realistic to suggest that patient standards would significantly increase due to the extra half a percent in the kitty, where the other 99% wasn’t enough? That’s assuming excessive legal fees are the real problem; in reality, claimant legal fees only contribute around 20% to the overall, with defence costs in the region of 10%.

I agree with Kimmo Boote, an associate at Dutton Gregory Solicitors and a clinical negligence specialist, who says: “Whilst the government’s stance in wanting to reduce the costs of expensive lawyers who use up valuable NHS resources may strike a chord with voters and taxpayers, the likely result will be that access to justice will be denied to many claimants who will have been injured by the very people that they had trusted to look after them in the first place.”

Perhaps one of the reasons claims are rising is patient dissatisfaction with how they are treated after the incident, with insufficient apologies and explanations of what and why things went wrong.

The UK has very poor risk statistics in many areas, such as birth injury. It is said only 4% of patients that could claim actually do. What if that doubles? It would be a disaster for the NHS but it wouldn’t be an increase in the current risk patients face.

There are many safeguards in place to protect the NHS from spurious claims as well: ATE insurers like us are gate keepers helping to filter out weak or speculative claims.

Perhaps it’s time for the NAO to end the political rhetoric and work together with all interested parties – the NHS, the government, victims of clinical negligence and the legal profession – to source the ‘missing data’ and establish the genuine cause of the rise in clinical negligence within the NHS.

This has to be better than focusing on the outcome of the negligence, which is, after all, that vulnerable victims are seeking support and stability for an uncertain future.

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