Annual reports of major organisations are useful accountability and transparency tools. They provide real-time insights into an organisation's health and working culture with trends, challenges, and opportunities being identified. NHS Resolution is a major NHS organisation concerned with patient safety, health quality and litigation management in the NHS, and provides essential infrastructure services.
Formerly known as the NHS Litigation Authority (NHSLA), it has been one of the most consistent and successful features of the NHS patient safety and health quality landscape since its creation in 1995 as a Special Health Authority and a not-for-profit arm's length body of the Department of Health. While its organisational remit has expanded significantly over the years it has continued to bring professionalism and order to the management of NHS clinical negligence litigation, which has been ever increasing. NHS Resolution is not without its critics. Oliver and Co Solicitors (2016) presented two case studies in a post on clinical negligence:
‘… which dispute the idea that the NHSLA resolves claims “as quickly and cost-effectively as practicable,” and argue instead that the NHSLA often fails to settle cases proactively and is therefore responsible for some of the rising costs they lament.’
Clinical negligence claims can be very complex matters to resolve and it is a highly specialist legal area. There can be many difficult legal issues to determine such as causation, whether a nurse's or doctor's negligence caused or materially contributed to the claimant patient's damage. Yet claims need to be resolved justly and without delay. NHS Resolution acknowledges this need as a fundamental operating aim. I have studied this organisation since its inception in 1995 and would argue that overall it has done a good job in managing clinical negligence claims against the NHS. I would, however, have liked to have seen more proactive use of its clinical negligence claims database with more themed reports being produced on common errors and themes in claims.
Annual Report 2018/2019
NHS Resolution's Annual Report (2019) is upbeat and positive and notes several achievements. It now operates, on behalf of the Department of Health and Social Care (DHSC), a new indemnity scheme for general practice. The Clinical Negligence Scheme for General Practice (CNSGP) is similar to the Clinical Negligence Scheme for Trusts (CNST), which has been in operation for over 20 years. This has been a major organisational challenge for NHS Resolution and the scheme was launched on 1 April 2019.
The report presents several achievements, including measures to increase understanding and tackle the drivers of claims costs, such as the factors that cause an incident to turn into a claim. NHS Resolution published work by the Behavioural Insights Team (BIT) (2018) to investigate patients' motivation to make claims for clinical negligence. This was an excellent report that provided several insights into why patients complain and litigate, and what the NHS, nurses and doctors can do to properly respond to patient concerns. The report found that the reactions of NHS staff following an incident were generally considered to be unsatisfactory by those claiming. There was a finding of inadequate, inappropriate explanations and apologies when patients suffer adverse health events. There were also negative findings on the NHS complaints system:
‘The majority of the research participants were not satisfied by the NHS complaints' handling process, in terms of communication (both verbal and written) and feeling that a meaningful outcome had been achieved.’
It is fair to say that the NHS is plagued by a defensive culture when it comes to adverse health events and professionals' responses to patients. The House of Commons Committee on Public Accounts (HCCPA), when examining the high costs of clinical negligence litigation, concluded:
‘There seems to be a prevailing attitude of defensiveness in the NHS when things go wrong, and a reluctance to admit mistakes, which is likely to be leading to more clinical negligence claims.’
The work by BIT (2018) provides a useful road map for improving how patients who suffer an adverse event can be better helped in the NHS and spells out the urgent need to improve communication processes at all levels.
Making more use of alternative dispute resolution and mediation
In terms of obtaining compensation and resolving disputes there are alternatives to going to court. We have an adversarial system of civil justice, which is expensive, time-consuming and can be very stressful for all concerned. NHS Resolution states that it continues to resolve increasing numbers of claims without resorting to litigation, which minimises unnecessary delays and improves the experience for claimants, their families and healthcare staff. The litigation rate decreased from 32% in 2017/2018 to 31% in 2018/19; NHS Resolution mediated 397 claims compared with 189 in 2017/2018. NHS Resolution is mediating more claims than ever before, which represents a marked cultural change in how clinical negligence disputes are resolved in England.
‘Just under one third of claims end up in litigation with less than 1% going to a full trial (where most end in judgment in favour of the NHS).’
Measures to incentivise the provision of safer maternity care
Maternity claims continue to be the biggest financial spend of all clinical areas for NHS Resolution in terms of compensation paid to claimant patients on behalf of the NHS.
‘Overwhelmingly, the cost of clinical negligence is driven by maternity claims, which represent 10% of the number of clinical claims we received in 2018/19, but half of the value of claims received and 70% of the £83 billion provision reported as at 31 March 2019.’
Improving safety and care in this area will reduce the level of litigation and costs as well as safeguarding the interests of patients. NHS Resolution reports considerable success with the CNST maternity incentive scheme, which rewards trusts financially for meeting 10 safety actions designed to improve the delivery of maternity and neonatal best practice.
NHS Resolution also runs an Early Notification Scheme for obstetric brain injury. This scheme maintains a promising potential to help all those concerned with obstetric brain injury claims and to resolve matters more quickly, giving effective early support.
Facts and figures for claims
NHS Resolution (2019) provides an important perspective on clinical negligence claims in the NHS in England. Facts and figures on clinical negligence claims, payments, and costs along with trends are given. There is a financial forecast of liabilities arising from claims under all NHS Resolution indemnity schemes. This has increased by £6.4 billion to a total of £83.4 billion, at current prices, at the end of this financial year. This is the value of liabilities arising from incidents that occurred before 31 March 2019, both in relation to claims received, and the estimate of claims that NHS Resolution is likely to receive from those incidents that have occurred but have yet to be reported as claims.
In 2018/2019 NHS Resolution received 10 678 new clinical negligence claims compared with 10 673 in 2017/2018. It has seen an increase in the successful defence of claims brought and reductions in claimant legal costs. Damages paid to patients rose from £1 632 million to £1 778 million, an increase of £146 million (9%). Compensation levels are rising; this year by over 13%. There have been some damage awards payments in excess of a value of £20 million. Legal costs overall are down with a £24 million (5%) drop in claimant legal costs. In his welcome to the report Ian Dilks, the chair of NHS Resolution, puts the issue of harm and cost in perspective:
‘I said last year that at current prices the annual ‘cost of harm’ was about £7-8 billion in recent years. In 2018/19 the cost of harm was approximately £9 billion, of which approximately 60% relates to maternity claims.’
The top three categories of clinical claims received in 2018/2019 were obstetrics, orthopaedic surgery and emergency care. Obstetrics represented 50% of the total estimated value but only 10% of the volume of received claims; orthopaedic surgery represented 4% of the total estimated value and 12% of the volume of claims received:
‘Emergency medicine remains the specialty from where most claims originate, which follows the pattern in 2017/18, yet only accounts for 9% of the overall estimated value of these claims.’
The report contains a lot more in the way of detailed statistics and reading these directly from the report is key to understanding trends.
Conclusion
NHS Resolution (2019) provides some valuable insights into the NHS clinical negligence litigation environment and problems. There is clear evidence in the report of proactive work being carried out across several key areas, which is leading to marked improvements.
A consistent theme over the years has been the record levels of clinical negligence claims and high costs. Going forward, to deal with the problem it is important that the issues are addressed by several government departments and not just seen as being within the remit of NHS Resolution and the DHSC to solve. The problem of unsafe care and litigation runs across the NHS and beyond. The National Audit Office (NAO) recognised the multifaceted nature of the problem:
‘The government lacks a coherent cross-government strategy, underpinned by policy, to support measures to tackle the rising cost of clinical negligence. The Department and NHS Resolution, working with others including the Ministry of Justice, have identified many of the factors contributing to the rising costs of clinical negligence … But some of the biggest factors influencing costs fall within the remit of more than one government department or are largely outside of the health system's control.’
The NAO argued for a more holistic approach to help solve the NHS clinical negligence problem. An insular approach to dealing with issues was noted. Cross-government departmental meetings are now taking place and attempts are being made to join up the thinking in this area.
In terms of future research the issue of clinical negligence—and allied to it, patient safety—should also not be constrained by looking at it through only particular academic subject specialty silos. Clinical negligence and patient safety cuts across many academic disciplines and multidisciplinary study and research should be encouraged.