Neil Rowe, senior in-house counsel at THEMIS Clinical Defence, examines why there is such a claims culture in the NHS and what is needed to reduce patient claims.
Is there an NHS claims culture or is it just a myth? Published statistics support the view that it is very real, indeed the number of complaints has doubled over a decade. The Parliamentary and Health Service Ombudsman, the highest level to which complaints about the NHS can be directed, received 14,615 formal complaints in 2011/12, which rose to 28,780 complaints by 2023/24.
Insofar as the number of claims is concerned, claims notified to the Clinical Negligence Scheme for Trusts (CNST) fluctuate but have fallen only very slightly – from 11,382 in 2014/15 to 10,835 in 2023/24. Fewer claims were made during the Covid pandemic but last year the number of claims did increase by 3%. In any event, complaint and claims numbers are not steadily falling as hoped.
More shocking is that in terms of clinical negligence payments, according to the Health Select Committee, the NHS in England is an outlier paying double the share of total health spending as New Zealand, ten times the level of Australia, and 20 times as much as Canada.
In 2023/24, clinical negligence payments increased to £2.9 billion or 1.7% of the entire NHS budget, the estimated “annual cost of harm” stood at £4.7 billion for CNST while its end-of-year provision was nearly £54 billion.
If there was any doubt about the seriousness of the problem, the liability is the largest on the government’s balance sheet save only or pensions and nuclear decommissioning.
The state of the NHS
It is impossible to understand why there are so many complaints and claims against the NHS without an appreciation of what is causing adverse incidents. Lord Darzi’s report into the NHS in England in September 2024 opened with the concerning sentence: “the NHS is in serious trouble”.
The issues he found that potentially lead to adverse incidents include:
- An ageing population with deteriorating health requiring more complex care
- Difficulties accessing GP, Community and mental health services shifting an increasing burden onto stretched secondary care
- Longer waiting times/lists and missed targets leading to all-time low patient satisfaction
- The “awful state” of A&E
- Cancer care lagging behind other comparative countries
- Improvements in cardiovascular care are being reversed
- Quality of care is mostly high but there have been numerous scandals/inquiries
- System issues and capital deficits diverting clinical focus away from patients
- The Covid pandemic backlog is larger than in other comparative countries
- Staff are stressed/ill and disengaged
The picture painted by Lord Darzi was stark and it is perhaps not surprising that while sources vary, there are estimated to be up to approximately two million adverse incidents in the NHS every year.
Incidents and complaints
It is fortunate that nine out of ten patients who suffer an adverse incident don’t eventually claim, but the question remains why it is that the remainder do so.
How the NHS and its patients react to an adverse incident will directly inform whether ultimately a claim will be made. Well-performed incident/complaint investigations and transparent patient communication should nip in the bud any potential for a claim.
A pre-pandemic NHS Resolution study concluded that patients bring claims depending on their basic capability to do so as well as whether they might be prompted to by external factors such as law firm advertising, family/friends, or even NHS staff.
The patient’s own motivation was especially important. While some would always want compensation from the outset they would be fuelled by emotional responses, the desire to avoid recurrence, the need for a (better) apology/explanation, or to ensure the responsible clinicians were held to account.
It is the same today; patient representatives such as the charity Action against Medical Accidents (AvMA) reiterate the need above all for sufficient apology and explanation and to ensure lessons are learned for prevention.
There is no doubt that awareness of the complaints process is one factor for the increase in complaints, but if duty of candour is not implemented well then that can exacerbate matters. A decade on from inception, many commentators believe that duty of candour is not universally well understood, and the operation of the complaints process could be improved through a better understanding of what the patient wants or the quality of responses. There is also concern that the introduction of the Patient Safety Incident Response Framework (PSIRF) with a greater degree of local flexibility will potentially lead either to a lack of investigation or to defensiveness.
Access to justice
Unfortunately, if a patient remains dissatisfied, they will want to take matters further. Another factor that will inform whether a patient will bring a claim is whether they can easily secure legal representation or are willing to act as a litigant in person. NHS Resolution initiatives such as gateways, website advice pages and litigant in person protocols make it easier for them to bring claims they otherwise may not do.
Changes in funding a decade ago to introduce “no win, no fee” arrangements encouraged a huge spike in claims often brought by non-specialist lawyers and accusations of “ambulance chasing” advertising. On the other hand, patient groups are now concerned that proposals to introduce fixed recoverable costs in claims worth up to £25,000 will significantly reduce the number of claims specialist solicitors are prepared to make.
It remains to be seen with the recent change in government and several deferrals if this scheme is ever introduced and if so in exactly what form.
Reform is required
Lord Darzi set out a number of recommendations for the next ten-year plan to repair the NHS and make the most of the extraordinary depth of clinical talent within it. By way of summary, they were to re-engage staff and re-empower patients, simplify and innovate care delivery for a neighbourhood NHS, drive productivity in hospitals, tilt towards technology, and reform to make the structure deliver.
If these are delivered, then the patient experience should improve and adverse incidents reduce.
Alongside this, the government’s review of the duty of candour legislation closed its call for evidence in November. It is hoped that the report will follow soon this year and will lead to the introduction of greater clarity, thereby reducing the motivation to claim.
There presently seems little prospect of the introduction of a “no fault” or redress scheme.
Significant long-term NHS reform is required to improve the NHS and therefore reduce both the number of adverse incidents and the proportion of claims that inevitably follow.
It remains to be seen whether patient lawyers will bring fewer claims or if there will be more litigants in person, but further improvements in patient explanations, apologies and reassurances around prevention are key.
