The NHS has risen admirably to the challenges brought about by the COVID-19 pandemic. Healthcare staff and other essential workers have worked heroically in very difficult and trying circumstances. As the dust begins to settle on the pandemic a picture is starting to emerge of trends in possible clinical negligence litigation against the NHS for actions taken during the crisis.
Long waiting lists after COVID-19: a new NHS litigation crisis brewing?
There has been a call from Peter Walsh, Chief Executive of Action against Medical Accidents (AvMA), and others for urgent action to be taken to prevent avoidable harm and deaths among non-COVID-19 patients. Mr Walsh (2020) states that, although the emergency action of the NHS in suspending some services at the start of the pandemic and concentrating on COVID-19 patients was understandable:
‘… AvMA is increasingly concerned about the consequences for patients with other conditions which need urgent treatment or diagnostic procedures. We have already been receiving enquiries from patients or their families where the unavailability of such services appears to have resulted in avoidable harm or even death. Solicitors around the country tell us that they have also.’
Mr Walsh also states that there is a growing backlog of patients requiring diagnostic services or urgent treatment. The problem is probably most severe in relation to cancer treatment and diagnosis, but he also notes major problems with accessing neurological and cardiology services. He makes the point that he was not aware of any government consultation with patients' groups at a national policy level when the government decision was taken to suspend some NHS services in favour of COVID-19 care (Walsh, 2020).
NHS patients, in general, have not been consulted over this COVID-19 priority setting. Some individual non-COVID-19 patients have had to face the sometimes dire consequences of this. Denis Campbell, writing in The Guardian, described the situation of a patient at serious risk of dying after his cancer went undetected because of the many service suspensions (Campbell, 2020). He had to wait months for a scan, and said:
‘I'm fighting for my life because I didn't have a scan. I should have had the scan months earlier but didn't because normal NHS care was suspended because of the coronavirus. I started asking for one in early March but didn't finally get one until last week … I'm angry, frustrated and disappointed. And I'm devastated that I might lose my life to cancer that could have been cured if they had done what they were supposed to do [more quickly].’
BBC News reported that health bosses fear that the COVID-19 crisis could see the number of people waiting for NHS treatment double to 10 million by the end of the year (BBC News, 2020).
Legal claims for compensation
Legal claims for compensation for negligent treatment delays are a main cause of health litigation. McClean (2019) discussed the case of a glaucoma patient who went blind as a result of delayed appointments for treatment. The Trust admitted that if she had received surgery before the end of 2016, complete sight loss would have been prevented. She received £3.2m in compensation.
Mr Walsh (2020) states that the AvMA is working with clinicians, patients, solicitors, barristers and others to raise awareness of this access and waiting list-issue and is demanding government action. This issue also raises important points of tort, human rights and public law.
The patient at the centre of the NHS
It is inevitable that people will reflect on what happened to them and their loved ones as the pandemic equilibrates. Given the history of patient safety crises in the NHS, and the environment of increasing clinical negligence litigation costs and claims, there is a greater public awareness of health rights, how to sue and complain.
A greater public awareness of health rights and redress mechanisms is good in terms of human rights and patient empowerment. The nurse or doctor will always be the most powerful person in the care equation. They have the professional knowledge that is urgently needed, and will be comfortable working in their routine environment. Conversely, a patient may be thinking the worst about their condition, often in strange surroundings, and feeling very vulnerable. Given this power imbalance, patients need help to stay informed about their health rights and what to do if things go wrong.
Greater NHS public transparency and accountability
Successive governments have encouraged greater NHS public transparency and accountability through various mechanisms and initiatives (Department of Health and Social Care (DHSC), 2015; AvMA, 2016; Care Quality Commission (CQC), 2017; NHS Resolution, 2017). The DHSC (2015) gave seven key principles to guide the NHS, including:
The CQC (2017) public engagement strategy has four stated priorities, including:
There are many other more sources of information and direction on how the NHS should engage with the public.
Health litigation has a cost to everybody
The burdens of litigation, both emotional and financial, should be avoided at all cost. Hopefully, the government will take heed of what is being said about long waiting lists and urgent care needs, and develop emergency funding plans and policies.
The Medical Protection Society
The Medical Protection Society (MPS) has stated that more people are suing for clinical negligence and seeking greater sums of money (MPS, 2017). With litigation on the increase, scarce NHS resources are being diverted from front-line patient care, and the fear of being sued may affect doctors' health and wellbeing, and, potentially, the way in which they practise. However, although litigation has been increasing, there has been no corresponding decline in professional standards (MPS, 2017).
The MPS (2017) has stated that, as a country, we need to take a three-pronged approach to dealing with what it terms, ‘the unsustainable increases in cost occurring as a result of this long-term trend’, and argued that we should:
A complex, multifaceted issue
The reasons for clinical negligence claims are being explored. NHS Resolution has published a very helpful and well-written publication on the factors that lead patients to consider claims for compensation when something has gone wrong with treatment (NHS Resolution, 2017). The findings cast an important light on patient motivation and how the risks of legal claims can be minimised. One identified insight was that there are often missed opportunities to avoid claims, with several interviewees suggesting that ‘more appropriate reactions, explanations and apologies would have prevented the need for a claim going forward’ (Behavioural Insights Team and NHS Resolution, 2018).
Mediation in healthcare claims: a new way forward
Apart from being expensive, formal litigation can be very stressful to all parties. The claimant must prove their case in an adversarial setting, taking those who care for them to court. After the case has been finalised, the patient will still most probably require continuing care through the NHS. Chief Executive of NHS Resolution Helen Vernon has given the advantages of alternative dispute mediation (ADR) (NHS Resolution, 2019):
‘The benefits are very clear. Mediation can deliver things which go beyond compensation … It provides space and time for everyone to explore and understand what happened in all its complexity, to hear what can and can't be answered and bring the conversation back to what matters to the injured person.’
NHS Resolution has recently published an evaluation of its ADR efforts (NHS Resolution, 2020). Mediation is fast becoming the best way to resolve clinical negligence disputes, avoiding the expense and stress of formal court proceedings and giving a more meaningful remedy to claimants.
An increase in mediation cases
Mediation case volumes have increased significantly. There was an overall increase in cases from 189 in 2017/2018 to 397 in 2018/2019, 74% of which were settled on the day of the mediation or within 28 days (NHS Resolution, 2019). The NHS Resolution mediation service can be viewed as a success and the scheme has much potential to provide claimants with a more meaningful remedy and less expense and than formal litigation.
Conclusion
Following on from the COVID-19 crisis, the NHS will have to cope with the effects of postponed appointments, treatments and services. The excellent resolve shown by the NHS in dealing with COVID-19 will need to be employed in the wake of the pandemic. The views of Mr Walsh and others require full acknowledgement and positive action to be taken in response.
The COVID-19 pandemic has caused us to reflect on the reasons for, and ethics behind, suing the NHS. Patients harmed by the negligence of those meant to care for them do have a fundamental and just right to bring claims for compensation. NHS Resolution's claims mediation service is showing promise to effectively resolve clinical negligence and other claims without recourse to formal legal proceedings and court action.