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.”