MPs urge “complacent” government to consider mandatory mediation to cut clinical negligence costs

Hillier: Vicious spiral

The government has been “slow and complacent” in its response to the rising costs of clinical negligence and should consider mandatory mediation for certain types of claim, MPs on the public accounts committee (PAC) said today.

They also criticised the Ministry of Justice for not assessing the impact of its various reforms and understanding how they may lead to more clinical negligence claims.

The recommendations came off the back of the recent National Audit Office (NAO) report on clinical negligence, which said its cost to the NHS – which has quadrupled over the past decade – will double again over the four years.

The NAO called on the government to take a “stronger and more integrated approach” across the health and justice systems to rein costs in.

The PAC said it had raised concerns about the rising costs of clinical negligence claims on “numerous occasions, going back to at least 2002”, but costs have continued to rise.

“It is clear that tackling the rising costs of clinical negligence requires urgent and far-reaching action by more than one government department, but currently there is no overarching cross-government approach to tackling this issue,” it said, echoing the NAO.

It said the Department of Health, Ministry of Justice and NHS Resolution had to take “urgent and coordinated action to address the rising costs of clinical negligence”.

This included reviewing, by April 2018, whether current legislation remains adequate – the government has suggested changing the 69-year-old law that requires that damages levels assume private provision of health and care costs, even though patients will receive free NHS care – and “appraising further measures to reduce the legal costs of claims, for example whether mediation should be mandated for certain types of claims”.

The committee also instructed the trio to clarify why it was taking longer to resolve claims; the average time increased from 300 to 426 days between 2010–11 and 2016–17.

“There can be several reasons for delays, some of which are within NHS Resolution’s control and some are not. NHS Resolution has to live within its budget, and so must manage the pace of settlements to remain within this limit.

“Some delays have been due to bottle necks at court and the Ministry of Justice told us that it is aiming to streamline court processes for clinical negligence cases.”

The PAC criticised the government for not assessing the impact of changes to legal reform on the volume of clinical negligence claims.

“On the rising number of low-value cases, but which have high legal costs, the Ministry of Justice accepted that government could have predicted the impact that legal reforms have had on the number of claims and claimants’ legal costs.

“These legal reforms included the introduction of ‘no-win-no fee’ agreements, to promote access to justice among people who would not have been eligible for legal aid, and the capping of legal fees for road traffic accident claims which led to more clinical negligence firms moving into the clinical negligence market.

“The Ministry of Justice told us it had taken action to address some of these issues and that it hopes to extend fixed recoverable costs to as many litigation areas as possible, particularly clinical negligence claims below £25,000.”

The committee also found that the NHS’s culture when things go wrong “appears to be predominantly defensive, rather than candid and transparent, which limits its ability to learn lessons”.

It told the Department of Health and NHS Resolution to work with trusts “to identify and spread best practice in handling harmful incidents and complaints. This should include how trusts say sorry and support patients when things go wrong”.

The PAC noted that increasing financial pressures on the NHS have started to affect waiting times and the quality of care, which risks leading to even more clinical negligence claims.

Almost 40% of clinical negligence claims against trusts are related to a failure or delay to diagnose or treat a patient, it said, telling the Department of Health and NHS Improvement that they should report back by April 2018 “on how they have ensured that trusts prioritise resources on patients that are most at risk of harm from increasing waiting times in the NHS”.

A lack of consistent data across the system meant the NHS does not understand why people do (or do not) make claims, or the root causes of the negligence, it added.

PAC chair Meg Hillier MP said: “I am concerned that funding available for NHS services and the costs of clinical negligence are locked in a vicious spiral – one that without urgent action will spin out of control.

“Of course it is important that patients who suffer because of clinical negligence are compensated. But government has been far too slow to understand and get a grip on the increase in negligence costs.

“The NHS must move more quickly to share best practice in the handling of harmful incidents and complaints.”

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