There is a danger of being too rooted in the past when it comes to policy making in any field. This can lead to a resistance to change and organisational values not being refreshed. We need to move with the times but also to reflect on our core values and maintain those that are good – it is a difficult balance to maintain. History can provide us, through reports into past patient safety crises and clinical negligence reforms, with valuable insights and lessons that we can apply today in policy developments in these areas. Seminal reports can also play a pivotal role as resources for education and training programmes, such as the NHS Patient Safety Syllabus (Spurgeon and Cross, 2022). They provide essential context to discussions along with useful case study material.
To illustrate the benefit of a historical analysis I will draw on three seminal reports. Today, these reports can be seen as ‘hidden gems’. They do appear in some contemporary reports but, in my view, are not as well-known as they should be. They present a timeless view of our NHS quality and governance framework, including clinical negligence litigation, which deserves to be much more widely shared.
The Civil Justice Review
Lord Woolf 's Civil Justice Review, Access to Justice (Woolf, 1996), changed the face of civil litigation in England and Wales. The reforms brought about judicial case management. Judges became the drivers of legal proceedings and not the parties themselves. Alternative dispute resolution (ADR) and pre-action protocols became the order of the day (Ministry of Justice, 2023). Litigation was to be seen as the last resort. There was a new ‘cards on the table’ approach to be followed by the parties in cases. De Girolamo and Spenser Underhill (2022) discussed Lord Woolf 's vision and the changes subsequently made by the reforms and the Civil Procedure Rules 1998:
‘It made a duty to consider alternative dispute resolution (ADR) and the active encouragement of settlement of disputes in preference to litigation wherever possible a central method for the delivery of justice. It required a new way of thinking about disputes from litigants, their advisors, and the courts.’
De Girolamo and Spenser Underhill, 2022: 130
Lord Woolf was writing over a quarter of a century ago, but his vision is still with us today. The new landscape outlined in the report included such matters as (Woolf, 1996: section I, paragraph 9)
- Litigation will be avoided wherever possible
- Litigation will be less adversarial and more co-operative
- Litigation will be less complex
- The timescale of litigation will be shorter and more certain
- The court will determine the length of the trial and what is to happen at the trial.
Woolf and clinical negligence litigation
Lord Woolf was particularly concerned about clinical negligence litigation, devoting the whole of chapter 15 to this issue, because:
‘… early in the Inquiry it became increasingly obvious that it was in the area of medical negligence that the civil justice system was failing most conspicuously to meet the needs of litigants in a number of respects.’
Woolf, 1996: chapter 15, paragraph 2
It is worth reminding ourselves today of what Lord Woolf found in order to avoid events repeating themselves. He was concerned that the ‘disproportion between costs and damages in medical negligence is particularly excessive, especially in lower value cases’. He discussed delays being unacceptable in this area of litigation:
- ‘Unmeritorious cases are often pursued, and clear-cut claims defended, for too long
- The success rate is lower than in other personal injury litigation
- The suspicion between the parties is more intense and the lack of co-operation frequently greater than in many other areas of litigation.’ (Chapter 15, paragraph 2).
Overall, Lord Woolf painted a grim picture. Things have significantly improved since then with the advent of the Woolf reforms. Cases do not take as long, there is more ADR and much more working together of claimants' and defendants' lawyers. However, high litigation costs still present a problem.
Teaching resource material
In terms of resources to support the NHS Patient Safety Syllabus (Spurgeon and Cross, 2022), it is useful to discuss whether the issues identified by Lord Woolf in his report are still with us to a greater or lesser extent today. A teaching strategy could be adopted where chapter 15 of Woolf (1996) could be studied in groups and then students invited to make reference to the recent inquiry by the House of Commons Health and Social Care Committee (HSCC) (2022).
I would also suggest the Pre-Action Protocol for the Resolution of Clinical Disputes (Ministry of Justice, 2023) is discussed in outline. This was the first protocol produced by the Woolf reforms. The latest annual report from NHS Resolution (2022) can then be woven into the discussions. Every year NHS Resolution provides statistics on clinical negligence and other claims in the pipeline, along with those resolved. Key matters such as trends analysis, costs, time to resolution and ADR are discussed. Most claims now are settled and do not go to court.
‘A total of 12,623 claims were settled without proceedings in 2021/22 (compared with 11,738 in 2020/21). This reflects an ongoing improvement in our litigation rate over the medium-term, settling more claims before formal court proceedings are required, based on our deployment of dispute resolution techniques, such as mediation and more collaboration with claimant lawyers.’
The Kennedy Report: Learning from Bristol
The public inquiry chaired by Professor Sir Ian Kennedy investigated events surrounding children who received complex cardiac surgical services at the Bristol Royal Infirmary over the period 1984-1995:
‘More children died than might have been expected in a typical PCS [paediatric cardiac surgery] unit. In the period from 1991 to 1995 between 30 and 35 more children under 1 died after open-heart surgery in the Bristol Unit than might be expected had the Unit been typical of other PCS units in England at the time.’
It considered the adequacy of the services provided, how concerns were dealt with internally and externally in the wider NHS, and recommendations for improvement.
The report is a model of clarity and a deep dive into fundamental health regulatory and governance issues. It was ground-breaking in its time and is still highly relevant today. It should feature as essential student patient safety learning material. The same teaching strategy suggested above could take place with this report, involving a discussion of how much has improved in terms of patient safety, since its publication. How much of an advance has the NHS made towards developing a patient safety culture? Key chapters to consider are:
- Chapter 22: The culture of the NHS
- Chapter 23: Respect and honesty
- Chapter 24: A health service which is well led
- Chapter 25: Competent healthcare professionals
- Chapter 26: The safety of care.
All these issues fully resonate today in discussions about patient safety and health regulation and governance. The clinical negligence litigation system is discussed in chapter 26, which controversially recommended that it be replaced:
‘We believe that the way forward lies in the abolition of clinical negligence litigation, taking clinical error out of the courts and the tort system. It should be replaced by effective systems for identifying, analysing, learning from, and preventing errors along with all other sentinel events.’
This was radical thinking on clinical negligence reform, which never took root. The compensation system survived and now we have the HSCC (2022) suggesting major reforms. Will that go the same way as the Kennedy report's proposals? A teaching strategy here could be to compare and contrast Kennedy (2001) with HSCC (2022) – to discuss how much clinical negligence procedure/practice change has taken place and whether the same problems persist.
Making Amends
The final ‘hidden gem’ that I will discuss in this column is Making Amends (Donaldson, 2003), a report from the Chief Medical Officer at the time, Sir Liam Donaldson. It locates the clinical negligence system within the context of patient safety and looks back to the findings in Woolf (1996). Topics include:
- Reducing risk and enhancing safety
- The nature of medical injury leading to claims
- The cost of clinical negligence
- Medical negligence and tort law
- The role of the NHS Litigation Authority
- Reforms to the operation of tort law
- The case for reform
- The case for no fault compensation.
A worrying statement
Early on in the report's summary there is the following worrying statement:
‘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.’
This view needs to be located within a 2023 litigation context and the changes brought about by the Woolf reforms. NHS Resolution annual reports also need to be reflected on and factored in. There has been a strong movement towards candour between the parties to a clinical negligence case, but some lawyers, stakeholders and others may still feel that there is still some truth in the above quote. Again, this is a point to discuss within groups in teaching the NHS Patient Safety Syllabus and it provides useful discussion material which can be read alongside the others highlighted here (Woolf, 1996; Kennedy, 2001; HSCC, 2022; NHS Resolution, 2022; Ministry of Justice, 2023).
Conclusion
The reports discussed in this column on civil justice, clinical negligence reform and past patient safety crises can all help us think about the future of these issues. They can help inject some conceptual underpinning, key context into policy development, education, and training. The reports provide useful anchor points from which to view issues. History has a key role to play in clinical negligence law reform and NHS patient safety culture development.