Currently our adversarial, tort-based clinical negligence compensation system is being reviewed by the Government with a view to reform (Hyde, 2021). This review will raise some fundamental issues such as the nature and purpose of the system. What are and what should be the underlying objectives of the system? How do we deal with competing interests and which, if any, should prevail?
In considering clinical negligence reform today it is important that the reviewers do not try to reinvent the wheel and fail to consider the seminal reports of the past, which can make an immense contribution to the debate.
Cooperative approaches
With clinical negligence litigation today, there is a much more cooperative, ‘cards on the table’ approach than formerly. As NHS Resolution annual reports show us each year, most clinical negligence cases do not proceed to trial and are settled without going to court—mediation and alternative dispute resolution methods are used (NHS Resolution, 2020). NHS Resolution (2021) points out that in 2020/21, of 299 mediated cases, 77% were settled on the day mediation took place or within 28 days. Of 15 674 claims settled, 74.7% were settled without any formal court proceedings, an increase on 71.5% in 2019/20 (NHS Resolution, 2021: 18). NHS Resolution states that the increase in the number of claims settling without court proceedings is due to efforts to avoid the need for court proceedings, and also notes that the response to the COVID-19 pandemic led to ‘a spirit of co-operation in our work with claimant solicitors’ (NHS Resolution, 2021: 18).
Engendering a cooperative attitude to clinical negligence disputes can also be seen as the prevailing influence behind the Pre-Action Protocol for the Resolution of Clinical Disputes, annexed to the Civil Procedure Rules, (Ministry of Justice, 2017). Where either party fails to comply with the Protocol, the court may impose sanctions. The general aims of the protocol (under section 2.1) are:
- To maintain and/or restore the patient/healthcare provider relationship in an open and transparent way
- To reduce delay and ensure that costs are proportionate
- To resolve as many disputes as possible without litigation.
The Pre-Action Protocol is generally regarded as a success in bringing about a less adversarial approach to clinical negligence.
Historical analysis: Making Amends
Reports of the past can usefully inform decision making today. In 2003, a seminal report by the then Chief Medical Officer, Sir Liam Donaldson, was published on proposals for reforming the approach to clinical negligence in the NHS (Chief Medical Officer (CMO), 2003). Even after nearly two decades, Making Amends is still relevant. The report neatly crystallised the challenges, opportunities and dilemmas inherent in our clinical negligence and civil justice system. There was also some excellent analysis on whether there should be a ‘no-fault’ system of liability in England. The idea was rejected:
‘Given the disadvantages set out at paragraph 9, the potentially large costs and the practical difficulties in framing an efficient comprehensive no-fault based scheme, not least to conform with the Human Rights requirements, I have rejected a wide-ranging no-fault scheme for all types of injury.’
Making Amends is most notable for the quote below characterising our clinical negligence system.
‘Legal proceedings for medical injury frequently progress in an atmosphere of confrontation, acrimony, misunderstanding and bitterness. The emphasis is on revealing as little as possible about what went wrong, defending clinical decisions that were taken and only reluctantly releasing information. In the past, cases have taken too long to settle.’
Some commentators may maintain that elements of this characterisation still persist.
Thinking about our system
In order to think about clinical negligence reform, we need to look first at what we want to achieve. What is or should be the underlying conceptual underpinning of our justice system here? Should it be distinct from other parts of the civil justice system and if so, why? Is the negligence of a surveyor, accountant or veterinary surgeon to be treated differently from that of nurse or doctor? What special characteristics would make such a distinction appropriate? The charity for patient safety and justice, Action against Medical Accidents (AvMA) (2021) highlights some patient stories that underline the vital importance of patient safety and justice.
Lessons from history: Learning from Bristol
It is also important to reflect on another seminal report, Learning from Bristol (Kennedy, 2001), the final report of the Bristol Royal Infirmary Inquiry, which again is as relevant today as it was when it was first published. The report is rich in analysis of our patient safety and tort-based compensation systems.
‘In order to remove the disincentive to open reporting and the discussion of sentinel events represented by the clinical negligence system, this system should be abolished. It should be replaced by an alternative system for compensating those patients who suffer harm arising out of treatment from the NHS.’
However, our clinical negligence system was not abolished and remains intact.
Recent calls for reform
There have been more recent calls to change our clinical negligence system. Costs are high economically and also personally for the patient. It should always be remembered when discussing costs that money is a poor compensator for those who have lost a faculty, amenity or a life through the negligence of a nurse or doctor. NHS Resolution warns that:
‘The cost of clinical negligence is expected to continue to rise without wider reform—we are still incurring around £8 billion annually for the cost of clinical negligence.’
There have been recent calls for changes from several quarters. The Medical Defence Union has a Fair Compensation campaign (https://tinyurl.com/34bpt4bm). It states that medical claims inflation is running at 8% a year, meaning that the size of claims is doubling every 9 years. It says this is not a reflection of clinical care standards, but is the result mainly of economic pressure and of an outdated legal system. The Medical Protection Society has another campaign: ‘Clinical Negligence costs: Striking a Balance’ (https://tinyurl.com/ra9w25c).
The Government is currently reviewing the clinical negligence system in England with a view to modernising it (Hyde, 2021). What will emerge is open to conjecture. A no-fault compensation system is one matter being investigated. I hope that in looking at the no-fault option it will reflect on Making Amends (CMO, 2003) and research from the Scottish Government (2017).
The Parliamentary Health and Social Care Committee (HSCC) in its report of the safety of maternity care in England has recently spoken critically about the clinical negligence compensation system:
‘It is clear to us that in its current form the clinical negligence process is failing to meet its objectives for both families and the healthcare system. Too often families are not provided with the appropriate, timely and compassionate support they deserve. For those delivering maternity care, the adversarial nature of litigation promotes a culture of blame instead of learning after a patient safety incident.’
Newman (2021) has provided an excellent overview of solicitor responses to clinical negligence system reform issues, context and the HSCC.
What next?
There is a sort of Groundhog Day scenario with clinical negligence reform proposals. The idea of no fault has been around a long time. The rising costs of claims needs to be dealt with in some way, but the question is: in what way? This is not a new issue, it has been regularly discussed over the years and has been highlighted by the National Audit Office (2017). What is clear is that we need detailed research to fully understand why patients litigate. Some of this research has been commissioned and NHS Resolution has embarked on work in this area. The issues are complex and will not be solved by simply introducing a no-fault based liability system.
Holder (2018) provided an excellent analysis of an address to the Personal Injury Bar Association by former Supreme Court Justice, Lord Sumption, in November 2017. He quoted Lord Sumption, who considered that although the fault-based system would continue to be eroded, it will largely remain for three reasons. The third reason is the most powerful for me in terms of retaining our system:
‘The third reason provided, is that it responds to “widespread public notions about personal responsibility and the proper function of law”.’
Conclusion
Our clinical negligence compensation system does have some shortcomings, but it is fundamentally a good compensation and redress system, in my view. It can be seen as an effective mechanism of personal accountability and functions also as a mechanism of deterrence, education and retribution. We would all be the worse off without it. We do need to hold to account those who caused negligent patient injury. Although the deterrent factor is arguable (Popper, 2011), I think it is one that is essential, in order to develop an effective patient safety culture and a just compensation system. Morally and legally all professionals owe a personal duty to provide competent care.
The efficacy or otherwise of our tort-based, adversarial system historically has been a controversial topic and remains so today. The Government is currently looking at possible system reform and there are serious issues to discuss that will impact on everybody in England as we are all consumers of the NHS. In considering reform options it is important to consider what is it that we want our compensation system to achieve and to be. We need to go back to basics.