Clinical negligence claims: is reform imminent?


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In March 2021, I considered whether the global pandemic would be a catalyst for change to the clinical negligence legal system in England & Wales. At that time, I concluded that there would need to be a lengthy discussion as to the pros and cons of legal reforms to the clinical negligence system, as a departure from the current system would require an overhaul of law which had been in place for nearly 70 years.

Last week, a report entitled "NHS Litigation Reform" was published by the Parliamentary Health and Social Care Committee led by Jeremy Hunt, MP, proposing a number of reforms to the current clinical negligence system.

The report, whilst noting that every year in England and Wales the NHS spends over £2 billion compensating patients who have suffered harm during their treatment, highlights that the process which "is supposed to deliver justice and incentivise improvements fails to do either". The report criticises the system and states that "for families accessing compensation is slow, adversarial, stressful, and often bitter".

Importantly, the report acknowledges that England's system of clinical negligence stands in stark contrast to international best practice in terms of patients' safety.

The report identifies a central recommendation that the NHS adopts a radically different system for compensating injured patients, which moves away from a system based on apportioning blame and prioritises learning from mistakes.

The report proposals for reform include:

1. Moving away from a blame culture. According to the Committee of MPs the focus should be whether the treatment system failed. The Committee of MPs believe this would create a better culture for learning from mistakes

2. Introducing an administrative scheme which would decide on an injured patient's entitlement to compensation in order to reduce the involvement of lawyers and therefore reduce legal costs. However, unhelpfully, the specific eligibility criteria for this scheme was left for the government to decide;

3. Before any court case there should be compulsory use of alternative dispute resolution through the independent body.

4. Cutting compensation for those who have suffered the greatest harm and have the greatest life long need by moving the right to claim costs of private care; and

5. Standardising compensation for future loss of earnings claims for children to assume national average wages.

The Government now has two months to respond to the Committee's Report by the end of June 2022, but there are many reasons to think the Government are unlikely to accept the Committee's proposals in full.

The Association of Personal Injury Lawyers (APIL), which represents victims of personal injury, says that the Parliamentary Health and Social Care Committee's proposed new scheme for NHS negligence claims would "undermine the principle of full and fair compensation for people who are injured through the negligence of others and that is completely unacceptable".

As I indicated in my previous review of the system in March 2021, it is patently obvious that reform is required, on that everyone agrees, but the Report does little more than identify the issues in black and white and fails to properly set out a realistic path to meaningful reform.

Unfortunately, it appears that despite the necessity for reform to reduce NHS expenditure on clinical negligence claims, further considered input is required from all sides of the discussion and to answer my opening question as to whether reform is imminent, the simple answer is a resounding 'no'.

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