While the Public Accounts Committee looks into the reduction of NHS legal fees, the Association of Personal Injury Lawyers argues that the duty of candour could help.
The Public Accounts Committee (PAC), in its scrutiny of the Department of Health and Social Care’s annual report and accounts, has called on the government to reduce tragic incidences of patient harm.
The PAC has found it unacceptable that DHSC has yet to develop a plan to deal with the cost of clinical negligence claims, with so much of taxpayers’ money being spent on legal fees.
Published at the end of October, it emerged that the annual cost of settling clinical negligence claims has more than tripled over the past 20 years from £1.1 billion in 2006-2007 to £3.6 billion in 2024-2025, due to increased claim numbers and the rising costs of settlements. On top of that, £58.2 billion was set aside to cover the potential cost of clinical negligence events in the 2023-24 accounts. This is the second-largest liability across government after nuclear decommissioning.
Digging deeper, 19% of the money awarded to claimants went to their lawyers on top of the fees payable for the government legal team.
The figures are on a par with those reported by NHS Resolution in August this year. It said that NHS negligence claims had risen almost 11% over the past year to £3.1 billion.
Since then, the committee has been taking evidence on what is being done to reduce patient harm and improve patient safety across the NHS, and the effective management of costs, including the reduction of legal fees.
Patient safety at the centre
Written evidence at the end of November came from the Society of Clinical Injury Lawyers, defence organisation Medical Defence Union (MDU) and charity Sands and Tommys Joint Policy Unit.
The Society of Clinical Injury Lawyers made a point of saying that patient safety should be at the centre of any review into clinical negligence in the UK.
It cited an example of where improved patient safety learning across Trusts has already produced positive outcomes at a Trust in East Anglia. This Trust was able to develop best practices through learning from outcomes at a separate NHS Trust in the North of England, which had a positive reputation for its mental healthcare practices.
“Centralised systems will be conducive to further learning opportunities and avoid the delayed development of best practices which lead to avoidable adverse outcomes,” the society said.
The MDU called for “a package of legal and procedural reforms to address the unsustainable cost of clinical negligence”.
While no single measure provides the complete answer, it said that there are a number of actions which could lead to immediate, tangible benefits. Significantly, it stressed the need to introduce fixed recoverable costs (FRC) for lower-value claims, which could save upwards of £50 million a year.
On the table since 2019, MDU pointed out that the organisation responsible for its implementation had blamed “outstanding issues” for the delay. “There is no indication of what those ‘outstanding issues’ are,” it continued, urging the committee to investigate.
Sands and Tommys Joint Policy Unit pointed to staffing. “It is clear that investment in staffing and infrastructure are critical components to improving maternity safety and in turn reducing clinical negligence claims,” it said.
“Much more comprehensive investment is needed to improve the safety and quality of services and deliver government commitments to reduce rates of stillbirth and neonatal death and eliminate inequalities,” it continued.
Avoiding legal battles
Speaking to Healthcare Today at the end of October, Helen Vernon, chief executive of NHS Resolution, emphasised that the most important thing for NHS providers is to ensure that healthcare staff involved in a patient’s care – or the organisation responsible for their management – deal with any issue as close as possible to the incident itself.
“We know this matters because our research with former claimants has shown that, had something been done much earlier in the process, many would probably never have made a claim at all,” she said.
This is backed up by the Association of Personal Injury Lawyers (APIL), which says that “arduous legal battles” are avoided when NHS Trusts admit failures when they happen – in fact, a direct obligation under the statutory duty of candour – but not universally observed.
“Many injured patients who go to a lawyer have unanswered questions about what happened. They feel kept in the dark, not given any explanation for their loved one’s injury or death, only to learn later that they were victims of negligence,” said APIL executive committee member Suzanne Trask.
“This breaks down trust between the patient, their family and the doctors. They feel let down. The NHS Trust knows what happened and holds all the information, yet injured patients and their lawyers must embark on their own investigations, forced into arduous legal battles which drive up delays and costs. It would be avoided if the NHS were open,” she said.
APIL analysis has found that a typical clinical negligence claimant waits almost nine months longer for a claim to settle when compared with ten years ago. This is an increase of 51%.
“A supportive environment would ensure the duty of candour is always met, and opportunities for learning embraced. But there are repeated reports of toxic cultures and poor leadership. The NHS has the power to make its negligence less costly, and the process better for victims so they can get the help they need in a timely way,” Trask continued.
“Trying to avoid facing the harm that has been caused prevents lessons from being learned. Clinicians should be enabled and empowered to do what is necessary to stop the same failures from being repeated,” she said.
