Features & Analysis

Should the UK abolish clinical negligence claims?

By Rhiannon Cambrook-Woods, managing director of Lysander Law, who has almost three decades of experience within the legal profession. Lysander Law is a specialist UK firm in clinical negligence, personal and complex injury, insolvency, and financial litigation.

Former health secretary, Jeremy Hunt MP, again criticised the clinical negligence litigation process and associated costs to the NHS during a webinar, which equates to 2% of the total budget, according to a The BMJ article. He claims hospitals are not learning from their mistakes, due in part to the time-consuming litigation process. It’s worth considering what changes to the clinical negligence process would mean for patients and the medical practice.

Clinical negligence is predominantly governed under common law in England and Wales. It stretches back hundreds of years and adapts to new social norms in an organic way. Indeed, it is much admired worldwide as being unfettered by politicians and instead, is often reflective of what society considers to be right or wrong. 

Addressing concerns 

As a patient injured as a result of negligent medical treatment, there is a small chance you can take legal action and receive compensation. To prove clinical negligence, the claim must meet a high legal threshold.

If one were to directly address the concerns expressed by Hunt, it would not be dissimilar to the Redress Scheme in Wales which applies to all low value claims under £25,000. It deals with claims in certain time limits, in-house at NHS organisations, with fixed costs paid to a claimant’s solicitors if successful. This prevents legal costs rising or becoming disproportionate to the value of the claim and can include an apology for those affected, too – often a demand of clients who say it’s not just about the money.

A ‘No Fault’ alternative 

Hunt has proposed that the need to prove negligence should be removed to allow quicker and cheaper resolution for both parties. This approach is already followed in New Zealand and is called a ‘No Fault’ scheme, where common law negligence does not need to be proven in civil proceedings.

This process removes the need for patients to take the NHS or GP equivalent to court to gain compensation for the resulting injury or death, and the cost of treatment and rehabilitation for injuries are covered, regardless of fault.

The No Fault scheme has found great success in New Zealand, but would it be beneficial in the UK? 

Economic interests of the NHS and the taxpayer would certainly raise questions of any Government about such a change. Additionally, the constitutional barriers that currently stand in the way would require manoeuvring, and this may be seen as too much of a risk for such untested change. 

But perhaps most importantly, whether patients should be deprived of the right to hold medical professionals and bodies accountable for their negligence in a public forum is the subject of much controversy.

There are several questions that should be considered:

  • How could organisations then learn from their mistakes or systemic failures? 
  • Could this pave the way to more mistakes and a higher NHS compensation bill due to the lack of investigations and blame being attributed? 
  • Would more risky procedures be undertaken, and less care be implicitly sanctioned?
  • Would it subsequently lead to the downfall of other pillars of our democracy?

The implementation of such a scheme in England and Wales may prove problematic as it would require strong public and political support, which can be rare for such drastic change.

But while options for reform are yet to be outlined, rumours continue to circulate over which route the Government will take. In order for the Government to make an executive decision on reform, it must be evaluated whether it is more important to save litigation costs and reduce the legal investment to prove a duty of care has been breached, or if it is more cost-effective to directly pay a sum to the claimant for medical and rehabilitative costs.

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