The committee’s report concludes that not only has the government’s liability for clinical negligence quadrupled over the past two decades, the Department of Health and Social Care is unable to show any meaningful action taken to address this
A report from the Public Accounts Committee (PAC) has found that not only has the government’s liability for clinical negligence quadrupled over the past two decades to £60 billion last year, the Department of Health and Social Care (DHSC) is unable to show any meaningful action taken to address this, and the NHS has not done enough to tackle the underlying causes of patient harm.
The report paints a picture of a system overwhelmed by safety recommendations that it cannot action, with evidence that, despite the NHS in England keeping a plethora of data on patient harm, its fragmented nature does not amount to good information which could identify and address clinical negligence’s underlying causes.
This builds on the broader report published by the committee at the end of November that found that, despite spending £3.24 billion on transforming diagnostic and surgical services, NHS England has missed its recovery targets. It also confirms the repeated failings of maternity services highlighted by Healthcare Today.
The PAC has highlighted the problem of disproportionate legal costs in clinical negligence claims again. Claimant legal fees more than tripled to £538 million last year, while claims with damages of £25,000 or less cost far more in fees than victims receive, with a cost-to-damages ratio of 3.7 to 1. The government’s previous plans to limit the amount paid to lawyers in lower-value cases were not implemented as planned two years ago, it says, and the DHSC should develop an alternative mechanism to speed up decisions and reduce costs for these cases.
Costs will rise
Recent increases in settlement costs (tripling to £3.6 billion last year) are likely to rise significantly to more than £4 billion a year by the end of the decade.
Despite warnings from the PAC dating back to 2002, it says that the DHSC has not committed to acting to make improvements to the fundamental issues of clinical negligence until the completion of a review announced last year, for which it did not have an expected date.
The report calls in particular for the DHSC to learn lessons from its failure to improve maternity care in England, and set out how it plans to reduce the incidence of harm and the costs of claims in this area.
The report shows settled claims involving infants and children increasing significantly, reaching £325 million in claims for paediatric failings last year. The inquiry heard that 120-130 brain injury cases involving children are settled every year, but it can take an average of 11-12 years to resolve each claim, at a high cost both for the victim’s experience and financially.
Evidence to the PAC’s inquiry from the Royal College of Obstetricians and Gynaecologists suggested that the maternity workforce is struggling under the pressure of delivering increasingly complex care.
As the College pointed out earlier this year, if every woman currently on a gynaecological waiting list stood shoulder to shoulder, the queue would stretch over 191 miles.
Finally, the report notes that claims being settled on the basis of how much a victim’s care would cost in the private sector, rather than in the NHS, stem from a law from 1948. The inquiry heard that this is a major contributory factor to the increasing cost of very high-value cases of more than £1 million.
“Clinical negligence is the second-largest financial liability across government, but represents to our committee a different matter entirely from other large items like nuclear decommissioning or pensions. This is a swelling accounting of profound suffering,” said Geoffrey Clifton-Brown, chair of the Public Accounts Committee.
“The rising costs of such claims are diverting resources away from frontline care, badly in need of them. That is why it feels impossible to accept that, despite two decades’ worth of warnings, we still appear to be worlds away from government or NHS engaging with the underlying causes of this issue,” he added.
Six recommendations
Many suggestions have been made about how to cut negligence costs, but the PAC has made six specific recommendations.
It has asked the DHSC both to explain its operational plan to tackle clinical negligence, including key milestones for achieving reductions in claim costs and volumes, and to publish David Lock’s review of clinical negligence within six months of it being completed.
It has also recommended that a national framework for improving patient safety with clear targets for annual improvement be set up. “We are concerned there is far too little data on the factors behind clinical negligence, given its huge impact on people’s lives and NHS finances,” the report says.
The DHSC should establish a national system for sharing data between trusts and analysing trends. “If there are barriers to sharing protected data, it should develop analysis on an anonymised basis to pull out lessons and provide early warning alerts to trusts,” it suggests.
It is echoing the emphasis on a failure of maternity care and has recommended that the DHSC publish the review by Valerie Amos, Baroness Amos, into maternity services within two months, alongside its response and set out how it plans to reduce the incidence of harm and the costs of claims in maternity care.
Next, an alternative dispute mechanism should be set up to speed up decisions and reduce costs for less complex cases. As part of this, it recommends that the DHSC look at international examples, such as in New Zealand and Sweden, of non-adversarial and ombudsman models and assess how our ombudsman system could be improved.
Finally, the DHSC should develop, within six months, proper estimates of the impact of assuming health and social care for clinical negligence victims by the private sector. It should set out, by the same deadline, additional measures which it judges would effectively guard against the risk of paying twice for the care of those it has harmed and an indicative timeline for their potential implementation.
