Clinical negligence claims could be handled by a tribunal under a new test for liability of whether the patient has suffered ‘reasonably avoidable injury’, Sir Rupert Jackson has proposed.
‘Tribunalising’ the process would make his fixed costs recommendations for clinical negligence cases more attractive, the former Court of Appeal judge said.
Speaking at yesterday’s Medico-Legal Conference in London, Sir Rupert called for all the various disciplinary tribunals for health professionals to be abolished and instead brought within the general tribunals system in a new clinical chamber.
This could be extended to clinical negligence claims, he said. “The same judges who currently hear clinical negligence claims would continue to do so, but in the tribunal context.
“They would be sitting alongside colleagues with medical expertise… It may be easier to introduce and – in the future – extend my proposals for fixed costs, if the forum for clinical negligence litigation becomes a specialist chamber of the First-tier Tribunal or the Upper Tribunal.
“In respect of cases above the fixed-costs regime, the tribunal would be well able to costs manage the proceedings.”
Where there were both disciplinary proceedings and civil litigation, the tribunal could hold a single fact-finding hearing.
Sir Rupert – who now practises as an arbitrator, adjudicator and mediator from 4 New Square – said there was a “looming problem” over the standard of care.
He explained: “As the population ages and the demands on the health service increase, doctors can more and more often rely upon systemic issues and say ‘I was doing my best in an impossible situation’.
“That, of course, is no defence for the NHS trust, which is under a duty to deploy staff in sufficient numbers and of sufficient expertise to treat the claimant properly.
“But the time may come, for example in an unusually long and cold winter, when an NHS trust can demonstrate that it simply did not have the funds to deploy the requisite staff. Neither the Bolam test nor the Montgomery test requires anyone to do the impossible.
“There may therefore be complex arguments about liability in the post-Brexit world. The needs of patients and their legitimate claims may be drowned out.”
The answer was to “simplify and objectify” the test for liability in the medical context to whether the patient has suffered “reasonably avoidable injury”.
“If the injury was reasonably avoidable, then the fact that the doctor had been on a twelve-hour night shift and had numerous other patients to treat is neither here nor there. The relevant health trust or private hospital is liable.”
This would both better protect the patient and “depersonalise” the investigation of liability.
Sir Rupert said: “The blunt fact is that all professional people make mistakes from time to time, especially in the early years of practice. They should not be so humiliated that they give up altogether.”
He also suggested that the clinical chamber could have scales for assessing future care costs as a way to reduce the cost of proceedings.
Though this was likely to increase the number of people who claimed, Sir Rupert said it need not push up the damages bill faced by the NHS.
“Damages could be tariff-based. This would enable an equitable distribution of the available compensation amongst all deserving claimants, in place of the present system in which a smaller proportion of deserving claimants recover higher damages.”