Should the public be barred from suing the NHS?

Michael Wade, a senior insurance executive brought in by the government to investigate public sector insurance schemes, has suggested the need for a debate about whether people should be barred from suing the NHS.

The NHS Litigation Authority, which provides indemnity cover for legal claims against the health service, has set aside £26.1bn to cover outstanding liabilities, equivalent to almost a quarter of the £113bn annual health budget.

What’s more, as the number of claims has been rising steadily for a number of years, growing 18 per cent on last year’s figures alone, Wade’s suggestion may find some popular support from those wishing to stem the tide.

Money grabbing

The NHS is a national treasure. It’s almost sacrosanct in the eyes of the British public, and some people believe that anyone who sues the health service is a money-grabbing leech.

While that’s an extreme view, it’s a commonly held belief that litigation is a waste of taxpayers’ money and clinical negligence claims are a drain on resources, unethical and primarily ‘not very British’.

However, is this the full story? I would suggest not. Wade might be better off speaking to some claimants before making such comments in the national press.

First, it is not the case that members of the public are queuing up to sue the NHS. In fact, people are very reluctant to do so, even after experiencing substantial harm. Our own research shows that, on average, people will wait a year after the harm has been caused before initiating litigation. The primary reason for the delay (44 per cent of cases) is that they didn’t want to make a fuss and in a quarter of cases it was because they didn’t want to take money from the NHS.

However, despite their initial reluctance these people do initiate claims. So why is this?

In the majority of cases (55 per cent) it’s because they want to prevent the same thing from happening to someone else. In addition, 18 per cent of claimants said that they only approached a lawyer because they felt they had been ‘fobbed off’ by the NHS complaints process.

Wade’s suggestion ignores the significant harm suffered by the injured party. For instance, of the 200 claimants we surveyed, 61 per cent said that they were in constant pain as a result of their injury and in over half (54 per cent) of the cases the injury would have a life-long impact. Forty-one per cent also reported that their ability to earn a living had been affected, causing them a direct financial loss as a result of their injury.

So how would barring access to litigation be fair to these people and their families who, through no fault of their own, have been left in pain and out of pocket?

Secretive practices

Mistakes and negligence happen in almost every organisation, but the NHS sometimes compounds its mistakes through secretive practices and by not admitting failure fast enough. A good proportion of most legal costs comprise the time it takes to conduct lengthy investigations to establish the full facts surrounding the case. In nearly all other fields of law, guilt is established far more quickly, dramatically reducing the legal costs.

But why does it take so much longer for the NHS to admit liability? Unfortunately for taxpayers, the NHS operates in a culture of secrecy. Gagging orders have been rife and cover-ups appear time and time again.

Given the time it takes for potential claims to be investigated and assessed, it could be as long as six months before these claims go through the system and the NHS starts to gauge the true size of the problem.

Greater transparency, a willingness to settle early when negligence has occurred and an improvement in the basic standard of care shown to patients and their families would go a long way to alleviate the potential problems a dramatic increase in claims would cause.

Far too often, cases are prolonged unnecessarily only to be settled on the court steps. Earlier intervention would dramatically reduce the total cost of these cases to the taxpayer.

At least this issue is being addressed, with plans announced for hospitals that can’t prove they have been transparent about clinical negligence to be hit with financial penalties and a commitment to greater transparency.

However, this cultural shift is likely to take some time to achieve. Anything Wade could do to speed up this transformation would be of huge benefit. SJ

Ed Fletcher is the CEO of Fletchers Solicitors