11 September 2012Print This Post

"Litigation culture" has corrosive effect on public sector, argues think tank

Furedi: call for no-fault compensation

A free-market think tank has delivered a broadside against the “litigation culture”, “ambulance-chasers” and “greedy lawyers”, arguing that they have led to professional best practice being judged by the absence of claims, to the detriment of “the ethos of public service”.

The Social Cost of Litigation was co-written for the Centre for Policy Studies – the research body founded by Margaret Thatcher’s mentor, Sir Keith Joseph – by well-known University of Kent sociologist Frank Furedi. It argues that the situation has “gone from bad to worse” in the 13 years since the academic wrote his book Courting mistrust: The hidden growth of a culture of litigation in Britain.

Fear of litigation in the education sector is now “comparable to the corrosive effect of litigation on the NHS,” and is harming children by inhibiting teachers from undertaking activities that involve risk, or the perception of risk, says Mr Furedi and his co-author and colleague at Kent, Jennie Bristow.

Meanwhile, in the NHS “arguably the most disturbing cost of litigation avoidance… is the extent to which clinical procedures may not be carried out, or medications not prescribed, because of the fear of litigation”, they say.

They continue: “The increasing fear of litigation is… extremely damaging to the professionalism of doctors, nurses and teachers: it erodes professional autonomy, stifles innovation, leads to defensive practices in both hospitals and schools and encourages greater bureaucracy. ‘Best practice’ is now defined as having checked all the boxes in a quality assurance form rather than doing what is best of the patient or pupil.”

The academics reserve some of their strongest criticism for “claims farmers”, which they complain have a “seedy… money-grabbing approach to litigation”. They add: “The central message is: ‘If you have a grievance, we can make you a fast buck’.” Legal mechanisms put in place to regulate the industry “provide a weak defence against the cultural power of the compensation culture”, they insist.

The authors argue that eliminating the “culture of litigation and litigation avoidance” requires looking “beyond ambulance-chasers and greedy lawyers” and “to challenge the expectation that professional best practice in the public sector should be measured by the absence of complaints or litigation”.

The report concludes that a “genuine return to respecting the principles of professional judgement would have a humanising effect on public services” and repeats an argument made in Courting mistrust: “It is important to separate compensation in the public sector from tort law. Policy makers need to consider how a scheme of no-fault liability can be devised to deal with those who have suffered harm or negligence.”

By Dan Bindman

2 Responses to “"Litigation culture" has corrosive effect on public sector, argues think tank”

  1. I was taught by Professor Frank Furedi at the University of Kent and I have a lot of respect for the man and his opinions – which appear however to have shifted rather across the political spectrum since I knew him – but I have to disagree with him on this occasion.

    If a child falls over and cuts themselves in the playground, the school should not be “bracing themselves for a writ from the parents”. If they have done nothing wrong then they have nothing to fear, as where is no negligence there is no claim.

    When the prospects of success are lower than 51% then the solicitor cannot offer a conditional fee agreement – not least because no legal expenses insurance would not be available in those circumstances . No personal injury solicitor, whether ambulance chasing or not, who expects to remain in business could possibly agree to issue proceedings. There has to be a realistic prospect of that disbursement being recovered at the end of the claim.

    Once again, this monologue warning of the dangers of the “compensation culture” is founded on misunderstanding and ignorance of the way a legal business has to operate and serves only to feed the very fear of litigation of which the authors complain.

  2. Julie Carlisle on September 11th, 2012 at 11:20 am
  3. I see ‘ambulance chasing lawyers’ are to blame yet again. Only, nobody seems to recognise the role of insurance companies and the judiciary in these matters.
    It is insurers who prescribe how best their policyholders should behave in order to avoid claims. They apply the red tape or encourage the defensive practices by the terms and conditions of their policies. It is not the practitioner themselves who make up these ‘rules’.
    The insurers, of course, have a financial interest in ensuring they pay out fewer claims. Perhaps if they were less prescriptive in their terms and conditions or more realistic in their pricing, doctors and teachers could act in a more socially beneficial way.
    As for judges, they are the ones who are, invariable, awarding damages and costs or deciding on liability. Lawyers do not make binding decisions on these matters, the courts do. If a lawyer runs a case and the court decided his client should win, how can the lawyer be criticised? Why should he be demonised for the judgement of the Court?
    This academic needs to take a long hard look at his study and spell reconsider who is making the decisions that affect this so called culture. It is not claimant lawyers, that is for sure.

  4. Graham Heywood on September 14th, 2012 at 11:31 am