The National Audit Office reported on 24 April that the NHS is facing a £4.4bn legal bill for medical negligence claims. Edward Leigh, the chairman of the Commons Public Accounts Committee, said that he was extremely worried by the scale of the cost to the NHS and urged reform of the compensation system. “We're living increasingly in a culture of litigation and certainly, if I was running the health service, I'd be very worried about this,” he said. “People know there's much more money coming into the health service now and it's possible there could be many more claims.” Health Secretary Alan Milburn is soon to publish plans to reform the clinical negligence system. He described the present system as slow, unfair and expensive, with too much money being taken by the lawyers.
So there we have it. As usual, it is the lawyers to blame for stoking up unreasonable demands for compensation by greedy litigants. A scandal that must be addressed by root and branch reform of the system. But any fair-minded observer of the clinical negligence system in this country would not blame the lawyers for the enormous bill faced by the NHS. The growing number of competent clinical negligence lawyers that exist in the UK have no reason to be defensive about the work they do.
So why is the clinical negligence bill so high? By far the largest element in the bill consists of compensation for incidents leading to brain damage or cerebral palsy. The size of these claims usually depends on the annual cost of caring for the injured patient and their life expectancy. Sums over £2m are awarded regularly to provide for the injured patient for the rest of their life. Given that the injured patient may require 24-hours-a-day, seven-days-a-week care for perhaps 50 years or more, this is not an exorbitant sum.
The main reason why the bill jumped by £500m last year was the Lord Chancellor's reduction of discount rates from 3 per cent to 2.5 per cent. Not so long ago, of course, the assumed rate of return was between 4 per cent and 5 per cent. Small wonder that the NHS bill has increased so hugely.
But a large part of the NHS bill relates to costs that the state would have to pay in any event. Local authorities have to provide suitable accommodation for those over the age of 18 who need care and attention as a consequence of disability; the NHS has to provide specialist medical care where the need arises; local education authorities have to provide suitable education for disabled children. If claimants and the courts could rely on a decent standard of care, accommodation and education being provided to them by the state, then the NHS legal bill would shrink drastically. But they can't. This is the true scandal that underlies the enormous litigation bill facing the NHS. Consider just a few examples taken from recent cases:
– A local education authority agrees to fund one-to-one teaching but caps the funding, as a consequence of which no appropriately qualified teacher can be found
– Local authorities agree to provide respite care, which is then cancelled at short notice because of understaffing
– A local authority and an NHS trust argue among themselves over who must provide care, as a consequence of which the claimant and her family manage unassisted for months
– Parents apply for funding for aids and equipment and are subjected to such bureaucracy that they are resigned never to receive the equipment.
Is it any wonder that claimants prefer to have a fund of money from which they can purchase regular, reliable and appropriate care and therapy?
So before we agree that the idea of the NHS having to pay £4.5bn to lawyers and claimants is so scandalous that the system should be reformed, let us first remember how much of that bill goes to provide proper care for disabled people, care that should in any event be provided by the state in any civilised society. Let us ask why injured patients do not and cannot rely on what state provision there is. And let us remember that a claimant only succeeds in their claim if they have proved that an NHS employee has fallen so far below the level of competence that can legitimately be expected, that they do not have the support of their peers.