Government undertaking “intensive” review of clinical negligence compensation

Dorries: Working at pace

The government is undertaking “intensive” work on reshaping the system of compensation for victims of clinical negligence, health minister Nadine Dorries revealed yesterday.

There will be a consultation looking at both compensation and patient safety.

Ms Dorries was speaking to Parliament’s health and social care committee as part of its inquiry into the safety of maternity services in England.

She was asked by chair and former health secretary Jeremy Hunt whether the government was looking at no-fault compensation systems like that in Sweden, where he said the neo-natal death rate was about half of England’s.

Ms Dorries said it was “hard to say” what the reasons for this disparity were, continuing: “I can’t be drawn on the detail but we are looking at, in the round, across the NHS, not just in maternity, about how those issues of no blame, no-fault compensation, clinical negligence, how they are treated and how they are dealt with and how we look at them and how we administer them.”

The minister stressed that it was “not just a workstream – this is intensive work” with meetings at high levels, and that it also has “to go hand in hand with patient safety” to create a system that was fair and “equitable for all”.

She added: “We are working at pace on this.”

Ms Dorries told Mr Hunt that it was “absolutely wrong” that, under the current rules for loss of earnings, the disabled child of a banker would receive “much more” compensation than the disabled child of a cleaner. This was an “outdated system”, she said.

William Vineall, director of NHS Quality, Safety and Investigations, said they had committed at last year’s spending round to consult on improving patient safety and tackling the rising costs of clinical negligence – costs he said have quadrupled in 15 years from £0.6bn to £2.3bn.

He explained that the review was looking at “all the drivers of costs”, and said there had been a push to resolve claims earlier, pointing to NHS Resolution’s embrace of mediation.

Mr Vineall noted that the National Audit Office has previously said that there is not a “causal link” between patient safety and the level of clinical negligence claims. “We’re saying we need to improve patient safety anyway… and need to look at how we structure our systems for compensation.”

Asked by Mr Hunt whether the involvement of lawyers very early in the process made investigations into events more adversarial, Dr Matthew Jolly, national clinical director for the maternity review, said: “That was definitely the case in the past but it feels very different now.”

He said investigations were now a “more objective process” that focused on how the whole care process worked rather than why an individual made a mistake.

Stephanie Prior, head of clinical negligence at London law firm Osbornes Law, said: “The review of this antiquated system cannot come soon enough. Day after day we are seeing mothers and babies suffering and dying because of the negligence of medical staff.

“The same mistakes are happening on a regular basis at some units which means lessons are not being learned and maternity units are struggling due to pressures of workload and staffing issues. This leads to poor medical care and mistakes being made…

“In addition, the current system of clinical negligence is borne out by those who feel that they have the energy and strength to seek legal advice when issues arrive with medical care.

“Families are often coping with the demands of looking after a brain-injured child and are not always emotionally ready to pursue a claim and, when they do, those who earn more often get a higher level of financial settlement. This grossly unfair and needs to be changed completely.”

Paul Rumley, a clinical negligence partner at Royds Withy King, expressed concern that the review appeared to be progressing without the input of specialist lawyers.

“A lack of collaboration also simply keeps repeating the same mistakes of trying to solve the wrong problem, and overlooks the examination of the issue of no-fault compensation which has been ongoing for over 20 years.”

He argued that “the high amount of repeat negligence claims” was the problem, rather than the legal system.  within the NHS – patient safety learning is the key to the issue;

“No-fault means no accountability, which cannot be allowed in a £130bn-per-year taxpayer-funded system,” he said.

“Every single government who has ever looked at no-fault compensation has come to the same conclusion: it is unaffordable for a national health system.

“And looking at countries like Sweden etc. are not directly comparable as they have different healthcare, and most importantly much more generous welfare benefits, systems.”

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