No health system is ever going to be 100% safe and there will always be some degree of error despite our very best efforts at managing risk. At the same time, it is clear from the regular reports of several organisations that avoidable errors are frequently made in the NHS at a level that is not acceptable. Add to this situation the injured patients whose lives have been ruined or even in some cases ended by avoidable error—they or their relatives can seek compensation in the courts. Here we can see the inter-relationship between patient safety and the law. We have poor care causing harm, which results in scarce financial resources being paid to patients as compensation.
The law's aim where a patient succeeds in proving negligence by a health professional is to put them back in the position that they would have been in had the negligence not occurred. In practice, this a hard thing to do as money is a poor compensator for the loss of a baby or losing a limb or faculty.
Patients have a right to secure justice and to expect a safe NHS. They are always the weakest party in the healthcare equation in terms of power and general situation. The nurse or doctor will generally be practising in their usual working environment, whereas the patient is in unfamiliar surroundings, often thinking the worst about their condition. There is an inherent power imbalance, which the law and the professional regulatory organisations through their codes seek to redress.
Rising cost of clinical negligence
Over the past 20 years or more there have been frequent discussions about how well our tort-based, civil justice compensation system is working. A key issue in these discussions is the reasons behind the rising costs of clinical negligence and how to stem them.
‘The cost of claims to the NHS continues to rise with £2.4 billion paid out during 2018/19. The annual cost of clinical negligence for the NHS has risen by over 200% over the past 10 years.’
The National Audit Office (NAO) set out the issues clearly:
‘The cost of clinical negligence claims is rising at a faster rate year-on-year, than NHS funding. Between 2010-11 and 2015-16, the average percentage of a trust's income spent on contributions to pay for the Clinical Negligence Scheme for Trusts increased from 1.3% to 1.8%. Our analysis indicates that this percentage is likely to rise to about 4% by 2020-21. The increasing costs of clinical negligence are adding to the significant financial pressures already faced by many trusts. Trusts spending a higher proportion of their income on clinical negligence are significantly more likely to be in deficit.’
The argument that the rising costs of the clinical negligence system is driving much needed resources away from frontline NHS care is an issue that does appear to dominate the headlines in discussions about clinical negligence system reform.
Respecting the patient's right to sue
Many media reports begin with the banner headline that the patient ‘wins’ compensation. Litigation is not a game. Organisations such as Action Against Medical Accidents (AvMA) (2021a) have many case studies to show the anguish and barriers that patients have encountered when trying to obtain just compensation for negligently caused harm. To balance the argument, the patient's inalienable right to sue for negligent harm must also be factored into any discussion—it must be stressed and respected. When patients have been harmed by those who were meant to care for them, they have a need for just resolution and consideration.
Reforms to the clinical negligence compensation system
Hyde (2021) in The Law Society Gazette reported that government ministers are working on a total overhaul of the ‘outdated’ system of clinical negligence compensation within the NHS:
‘Health minister Nadine Dorries told the health and social care committee that a review of the system was going ‘at pace’ and could involve all claims against the NHS.’
Dorries' evidence to the parliamentary committee on 2 February 2021 is archived online at the parliamentlive.tv website (https://bit.ly/3bUS669). This committee hearing is well worth listening to as several key matters relating to patient safety and the clinical negligence system are discussed. These two key drivers of costs to the NHS need to be looked at hand-in-hand. The minister spoke about ‘outdated’ practices and system when discussing how compensation is calculated.
An intensive government review of the system is taking place at very high levels. There will be a government consultation paper published later this year on the clinical negligence system and several matters will be looked at including different mechanisms to compensate, and cost reduction. One alternative to the current tort-based system being looked at is no-fault compensation, which has been the subject of many academic articles and reports over the years.
The review and forthcoming consultation paper on clinical negligence will bring to the fore several key issues that require open and informed discussion including the rising costs of the clinical negligence. The point that patients have an inalienable right to sue for negligent harm will also need discussion. It was reassuring to hear the words ‘openness’, ‘transparency’ and ‘culture’ spoken in the committee hearing.
Some attributes of the current clinical negligence system
The current tort-based clinical negligence compensation system can also be seen to function as a mechanism of deterrence, accountability and education. If nurses and doctors are negligent then they can end up in court, so this should deter bad practice. Also, they must explain to their employers, the court, the patient and others what has gone on. The reported cases of harm are also useful educational aids in terms of case studies. Any reforms to the system should take these factors into account.
In terms of the government review, our civil litigation system is an adversarial based one, and we need to think carefully as to why we might want to take clinical negligence out of that system. Is it so completely different to other forms of professional service litigation? In one sense, yes, because the NHS is the main provider of health care and a patient who receives compensation from the NHS will still need to be treated by the NHS. There is often only one defendant, in real practical terms: the NHS. How the system operates, the impact of litigation, fairness, justice, and compensation are just some of several key issues that need careful consideration when considering the reform of the clinical negligence system.
A ‘harmed patient’ pathway
AvMA (2021b) is working with the Harmed Patients Alliance (HPA) to define a harmed patient pathway. This is proposing a nationally agreed range of support that patients or their families can expect to access following avoidable harm. This would include, but not be limited to:
‘-Full and empathetic adherence to the Duty of Candour
- The right to be meaningfully involved in investigations
- Access to independent, specialist advice and/or advocacy
- Access to specialist counselling
- Opportunities to be involved in helping NHS bodies improve patient safety
- Redress/compensation where appropriate without the need to take legal action, and if this is needed, no unfair barriers.’
This is a very useful and interesting proposal and should galvanise discussion on several fronts, particularly in the work on the NHS Patient Safety Strategy (NHS England and NHS Improvement, 2019) and in the forthcoming government consultation on the clinical negligence compensation system. It is vital that patient rights and interests are also factored into any discussions of patient safety policy, developments and reform of the compensation system. Also, to ensure that the economic and resource arguments do not dominate discussions and eclipse other pertinent issues.
CQC investigation report: Never Events in Cornwall
I often like to finish off a patient safety reports analysis with a discussion of a recently published investigation report from the Care Quality Commission (CQC). These CQC reports ground discussions in practice and show in real-time what is going on in the NHS. They imbue an acute sense of realism showing practically how far the NHS must go to develop a patient safety culture.
When we talk about the link between patient safety and the law, and the patient's right to sue for avoidable harm, CQC inspection reports compound and highlight the issues. When we talk about NHS resources being preserved, or encounter phrasing such as patients ‘winning’ compensation, and then we see several Never Events happening in a trust over a matter of months, that puts matters into a sharp realist perspective. The NHS can be guilty of unforgivable conduct at times regarding Never Event occurrences.
The CQC (2021) has warned Royal Cornwall Hospitals NHS Trust to make improvements to its surgical care services to prevent further ‘never events’ from occurring. In the overall summary of services in the report, it states that the ‘never events’ prompting concern happened over three locations run by the Trust:
‘February 2020. Retained swab, Breast Surgery theatres at St Michaels Hospital.
May 2020. Wrong site surgery, Dermatology West Cornwall Hospital.
June 2020. Wrong site surgery, Dermatology Unit Royal Cornwall Hospital.
May 2020. Partial retained wire, Cardiac Catheter Laboratories Royal Cornwall Hospital.
September 2020. Incorrect lens fitted, Ophthalmology Theatre Royal Cornwall Hospital.
September 2020. Wrong medicine given, Emergency Department Royal Cornwall Hospital.
October 2020. Wrong site surgery, Dermatology Unit Royal Cornwall Hospital.’
The fact that these Never Events can and do happen in other trusts shows to my mind how far the NHS must go before it can be said to have a proper patient safety culture in place. Further, they compound the point that patients who might be trying to seek compensation from such events need to have a fair and just compensation system to access.