The associate professor of law at Birmingham Law School argues that there has been a lack of understanding within the system about how to approach candour meaningfully.
John Tingle’s research focuses on health law where he examines issues relating to clinical negligence litigation and patient safety. Here, the associate professor of law at Birmingham Law School talks to Healthcare Today about why clinical negligence claims in the UK have rocketed, why a duty of candour has not filtered through the NHS and why robust steps to embed a true patient safety culture in the NHS are needed.
The costs of clinical negligence litigation have been described as “jaw-dropping”, “astounding” and “astronomical”. How serious is the current situation and can it be fixed?
The truth is nobody really knows how best to fix it. If we go back to 2000, the chief medical officer at the time Liam Donaldson, published a landmark report “An Organisation with a Memory”. That report identified major patient safety failings across the NHS and introduced the concept of clinical governance. Ever since, the NHS has been grappling with how to build a meaningful and sustainable patient safety culture.
Over the years, the system has often reacted in a knee-jerk fashion to high-profile failures such as Mid Staffordshire. It has repeatedly restructured itself – creating new bodies and abolishing old ones. By 2025, we are left with multiple regulatory bodies operating in parallel. This complexity has led to duplication, fragmentation and confusion – not just for professionals, but for patients too.
The result? The system is now recording in excess of 240,000 patient safety incidents a year.
Alongside growing public awareness, we continue to see serious and sometimes shocking examples of clinical negligence. Reports into Mid Staffordshire, Morecambe Bay, East Kent – and now Nottingham – highlight failures that are disturbingly similar, especially in maternity services. In these areas, compensation awards can be extraordinarily high: £20-27 million is not uncommon in severe cases of avoidable brain injury at birth. Indeed, maternity-related claims now account for around half the total cost of clinical negligence in the NHS.
NHS Resolution’s annual reports lay out the data in full, but if you read the East Kent report, one theme stands out: failures in communication. From a healthcare lawyer’s perspective, poor communication underpins the majority of litigation and complaints in the system.
Looking back over the past 25 years, it’s clear that the NHS has not consistently learned from past mistakes.
To what extent are high-value claims – such as those involving birth injuries – skewing the overall cost picture?
It’s difficult to see how it wouldn’t have an impact. If we look at the proportion of claims, NHS Resolution indicates that around 10-15% of all cases relate to obstetrics. However, in terms of cost, obstetric claims consume nearly half of the total expenditure on clinical negligence. The imbalance is striking.
This reflects a fundamental aspect of the tort system. Its aim is to restore the claimant, as far as possible, to the position they would have been in had the negligence not occurred. It is a full-compensation model, and crucially, it is based on the cost of private healthcare, not NHS care. That principle – of putting the claimant back in the position they would otherwise have been in – drives the level of damages awarded.
“Harm is not intentional; healthcare professionals are devastated when things go wrong.”
You have talked in the past about an element of scapegoating lawyers for their fees. What role do legal costs – especially those associated with claimant lawyers – play in driving up overall litigation costs?
This is a complex issue. If you look at NHS Resolution’s annual reports, you’ll see regular comparisons between the costs incurred by defence lawyers – who are on the NHS Resolution panel – and those of claimant lawyers. These two groups operate under very different systems. NHS defence lawyers have their fees regulated by NHS Resolution, while claimant lawyers operate within the free market.
Ultimately, it’s up to a costs judge – a High Court master – to assess whether fees claimed are reasonable. That said, legal costs vary significantly between firms, and much depends on the complexity of individual cases.
It’s important to recognise that clinical negligence cases are inherently complex. The financial structure of such cases means lawyers are often selective about which claims they pursue. The cost of mounting a claim – including obtaining expert medical evidence – is high. This drives up both complexity and cost.
The Department of Health has proposed capping legal costs for lower-value claims, and that approach is currently being explored. While cost control is a legitimate concern, my view is that we must be cautious not to undermine claimants’ access to legal representation. Curtailing that right would be deeply problematic.
Do we actually need reform? Do any parts of the system need to be looked at again?
We don’t need wholesale reform of the clinical negligence system. There has been discussion about adjusting compensation levels, for instance by reducing awards currently calculated on the basis of private healthcare costs. But even that is complicated. While some patients do opt for private care – often to avoid long waits – the fundamental point remains: if someone has been harmed through clinical negligence, they are entitled to be restored, as far as possible, to the condition they were in beforehand.
This harm is not intentional; healthcare professionals are devastated when things go wrong. But if, prior to an operation, you were able to walk and afterwards you are no longer able to, you should be compensated accordingly. And while money is always an inadequate substitute for the loss of mobility, function or life itself, the principle of the tort system is clear: it is about full compensation.
Some have argued that we should replace our adversarial system with a no-fault model, as seen in parts of the US (such as Virginia), New Zealand and Sweden. Both the government and independent reviews have concluded that a no-fault system would be impractical in England.
In reality, lawyers play a filtering role. They do not take on cases unless they believe they have merit, especially given the lack of legal aid and the financial risks involved. We operate within a delicately balanced framework.
For that reason, I believe litigation should not be viewed as a threat or a problem to be solved, but as a vital element of accountability.
“There seems to be growing recognition that, when it comes to large institutional responses to harm, a deeper cultural shift is needed.”
When Healthcare Today talked to Jeremy Hunt, a frustration he had was that the “duty of candour” had not filtered through the NHS and that the organisation was still gripped by a blame culture. Is that fair to say?
Jeremy Hunt is right on this. There’s been a longstanding issue with the implementation of the duty of candour. While both a professional and statutory duty exist, the latter, regulated by the Care Quality Commission (CQC), hasn’t been properly enforced. To date, there have only been a handful of prosecutions.
Jeremy was focusing on the statutory duty, which is supposed to ensure that healthcare providers are open and honest when things go wrong. The Compensation Act even states that offering an apology does not amount to an admission of liability.
There has perhaps been a lack of understanding within the system about how to approach candour meaningfully and strengthening this framework is something the government has looked into. I suspect we may see changes to the statutory duty of candour in due course. There seems to be growing recognition that, when it comes to large institutional responses to harm, a deeper cultural shift is needed.
Part of the challenge is cultural. A climate of blame still inhibits candour. But there’s another issue, too: a widespread lack of legal literacy among doctors and nurses. Many clinicians don’t fully grasp what’s involved in proving medical negligence. The reality is that these cases are very difficult to bring.
There’s often an exaggerated fear among healthcare professionals that they’ll be sued personally. But in practice, that’s rare.
I don’t think we’ll see a new special health authority for patient safety. Nor do I think major reforms to the statutory duty of candour are imminent. But the conversation is moving, and we need to keep pushing for better understanding, transparency and accountability within the system.
Do you get a sense that the current Westminster government understands the complexity of this issue?
Yes, absolutely – the current government is very well-informed about these issues. You can see that reflected in the various Dash reviews, particularly the one concerning maternity and patient safety.
I thought the first Dash review – especially the part concerning the CQC – was spot on. And I’ve no doubt that the second will be just as incisive.
Behind the scenes, there’s a great deal happening. The Department of Health and Social Care has an entire patient safety division, which is actively working on policy. I’ve seen around seven or eight consultation papers emerge recently. They’re impressively detailed and thoughtful – clearly the product of talented people who understand the system. Just because we don’t always see high-profile ministerial statements doesn’t mean nothing is happening.
“Looking ahead, I think we will have made progress in 20 years’ time – but it won’t be transformative.”
If I come back in five or ten years’ time, will we be having the same conversation? Are we at least moving in the right direction?
You can’t accuse the Department of Health and Social Care of being sluggish. Over the past 20 years, it has moved fairly quickly to build a well-engineered system. But progress in developing a genuine NHS safety culture has been much slower.
Looking ahead, I think we will have made progress in 20 years’ time – but it won’t be transformative.
What we need now are robust steps to embed a true patient safety culture in the NHS. That means reinforcing the idea of individual and professional responsibility for error. Clinicians need to prioritise patients, and improve how they communicate.
We know what the problems are. We’ve known for a decade or more. Every national inquiry says the same thing. The issue isn’t knowledge – it’s culture. And culture doesn’t change overnight.
