The adage ‘so near and yet so far’ well describes where we are with our current clinical negligence system reform. Although at the time of writing we have not yet heard any details from the government on its plans to reform the system (Hyde, 2021), the House of Commons Health and Social Care Select Committee (HSCSC) Inquiry on NHS Litigation is steaming ahead and producing some excellent expert witness evidence, which is generating a lot of food for thought:
‘Former health secretary Jeremy Hunt has questioned whether clinical negligence lawyers are blocking vital reforms because the status quo is too lucrative to change.’
Going straight to the transcript of the meeting (HSCSC, 2022), Hunt's question was addressed to Guy Forster, representing the Association of Personal Injury Lawyers:
‘Last year, £2.2 billion was paid by the NHS. There is a huge industry of clinical negligence lawyers. I think getting on for half that amount was legal fees. Is there self-interest in the legal profession that makes you want to resist change?’
To which Forster replied:
‘Absolutely not. As I say, it is important to remember that behind these large figures we are talking about people who were harmed, at the end of the day. When you look at the process, it is not the case that everybody needs to go to court to receive redress because, actually, three quarters of those who receive damages in some way will receive them without the need for proceedings at all.’
HSCSC, 2022:Q102
The oral evidence given by the expert witnesses provides insight into the advantages and disadvantages of our tort-based system and how we could fine-tune it or even replace it. Other related issues discussed include why patient safety errors occur, complaints, investigations, and staff and patient attitudes to adverse health events.
Coleman (2021) has produced a useful guide for the House of Lords Library, which covers:
- Managing compensation in the NHS in England
- Costs of compensation
- Addressing the cost of compensation
- Government position
- House of Commons Health and Social
Care Committee: NHS litigation inquiry.
This is an excellent educational resource that captures key issues in the reform debate, giving helpful facts and figures.
NHS complaint handling
Robert Francis QC, who chaired the Mid Staffordshire Inquiry, gave evidence to the NHS litigation inquiry (HSCSC, 2021) and his comments on learning from the NHS complaints system are thought provoking. He is also the chair of Healthwatch England, and his evidence included discussion on the need for NHS staff to learn from complaints. He produced findings from the Healthwatch (2020) survey of hospital complaint systems.
‘I am afraid that a large proportion of them are not even obeying the minimum statutory requirements for reporting complaints. Many only report numbers. Very few report more than a category of complaint. Virtually none, though there are some, tell the stories from which there could be generic learning. There is a huge resource of information from complaints that is not being used.’
HSCSC, 2021:Q41
A major systemic failing in the NHS is that it does not always learn from the errors of the past and change practice accordingly. We can see Never Events becoming Common Never Events. It is essential that we all listen to and action these observations on learning from complaints. They are key to developing a patient safety culture in the NHS. It is also a useful exercise to read and reflect on the Healthwatch (2020) report, the key findings of which included:
- Local reporting is ‘inconsistent and inaccessible’
- ‘Staff are not empowered to communicate with the public on complaints’
- Reporting is concerned with ‘counting complaints, not demonstrating learning’.
‘Only 38% of trusts make public any information on the changes they've made in response to complaints. Much of this reporting is still only high-level, telling us little detail about what has changed and only stating that “improvements were made”.’
Even more difficult, it seems, is to generally turn those who complain about the NHS into advocates of the system when their complaints are resolved—arguably, this is the gold standard for any complaints system to achieve. Many have argued, including myself over the years, that the NHS complaints system is generally not fit for purpose and that root-and-branch reform is long overdue.
Defensive by nature
Defensive attitudes by NHS staff to complaints and adverse health incidents is another failing that needs to be urgently resolved. It seems to be a basic tenet of human nature that nobody likes to be complained about and that the instinctive response is to become defensive and clam up. This was referred to by Sir Robert Francis:
‘When something has gone wrong, the system we have, largely, I am afraid, because of the threats of litigation, results in a defensive attitude …
‘I believe there is a very strong culture in the NHS—probably not always consciously, but it is there—of, “We must defend our colleagues.”’
HSCSC, 2021: Q25, Q30
Patients can be forced into a corner when it comes to being given information about what has gone wrong with their treatment and can be forced to sue to find out what happened, as seen in other reports (Behavioural Insights Team, 2018).
What patients want out of a compensation system
A fresh perspective on the reform debate can be seen in a report by Opinium Research (2022) commissioned by the Association of Personal Injury Lawyers: The Value of Compensation. The loudest voices are often those of the NHS and of the lawyers themselves. Cost arguments seem to dominate the discussion and the patient's voice is seemingly lost.
The rationale given for commissioning the research is that it will help achieve a better understanding of how financial compensation affects the lives of patients who have been injured because of NHS negligence. Essentially, what is being said here is that clinical negligence system reform is not just about saving the NHS money and stemming increasing costs. Human beings are behind all of this as well, and they have been avoidably damaged by those who were meant to care for them. There is a personal, human factor here that needs to be included in the reform debate. The report has the following sections:
- Context and approach
- Executive summary
- The impact of negligence on health and the value of compensation
- Financial implications of negligence and how compensation helps people get back on track financially
- Compensation can provide justice
- The process of claiming
Some key themes arising include:
‘ 6. Where negligence has caused uncertainty about the future, compensation offers reassurance’
7. The compensation awarded is “not life changing”, it simply helps people get back on track’
8. Compensation isn't about shaming the NHS, but about recognition of wrongdoing.’
The report states:
‘Many patients mention their admiration and respect for the NHS and the work that they do, and some mention not feeling particularly happy at having to take action against them. However, it is considered important that negligence and wrongdoing are recognised and equally that these experiences are not repeated for others.’
Compensation and accountability
It seems to me to be a fundamental precept of our tort-based clinical negligence compensation system that wrongdoing is recognised. That fault is correctly and justly attributed so that lessons can be learnt, and that the same wrongdoing is not repeated to others. There are several other ways of characterising these sentiments. The need for accountability and transparency, openness, identifying incompetence, building system resilience and so on.
I would also add that we can view our compensation system as acting as a mechanism of deterrence. Nurses and doctors can avoid the stressful experience of going to court by practising safely. Our present compensation system is also good as a source of education and training. There is an established body of publicly available, with detailed case law that we can all learn from.
Conclusion
The transcripts of oral evidence to the Select Committee present a rich and informative dialogue on the pros and cons of our clinical negligence system. It will be seen that there are no quick fixes to the issues raised, no easy solutions. What is evident is that the system cannot be separated from the context of NHS care delivery. Problems have long been identified with our complaints system, how health professionals talk to patients, a defensive NHS culture when it comes to error reporting and so on. There is also the fact that the NHS is seemingly bad at changing practices. These all appear to be deep-rooted problems that need to be reflected on when clinical negligence reform is considered. These issues also need to be fully addressed by the NHS. The Select Committee (HSCSC, 2021; 2022) has created an agenda for change.
There is a danger that if we fundamentally change our compensation system we will be, in essence, throwing the baby out with the bath water. The advantages of our present compensation system seemingly outweigh its disadvantages. Some ways forward in possible reform and improvement are discussed in the transcripts of the oral evidence given to the Select Committee and these should be read by all those concerned with patient safety, health quality and litigation. We also need to take on board more what patients say about our compensation system—they too are fundamental stakeholders in the system.