NHS litigation reform
Health and Social Care Committee
Closed
Inquiry
The Committee has launched a new inquiry to examine the case for the reform of NHS litigation against a background of a significant increase in costs, and concerns that the clinical negligence process fails to do enough to encourage lessons being learnt which promote future patient safety. Read the call …
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15
Recommendations
19
Conclusions
1
Report
3
Oral sessions
1
Letter
3
Events
Activity timeline 8 events
28 Apr
2022
2022
Report published
20 Apr
2022
2022
1 Feb
2022
2022
Oral evidence
1 Feb
2022
2022
Formal meeting (oral evidence session) · Room 8, Palace of Westminster
11 Jan
2022
2022
Oral evidence
11 Jan
2022
2022
Formal meeting (oral evidence session) · Room 8, Palace of Westminster
16 Nov
2021
2021
Oral evidence
16 Nov
2021
2021
Formal meeting (oral evidence session) · Room 8, Palace of Westminster
Oral evidence sessions 3 sessions
1 Feb 2022
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Helen Vernon · NHS Resolution
Jill Edwards, lived experience witness
Maria Caulfield · Department of Health and Social Care
Matthew Style · Department of Health and Social Care
11 Jan 2022
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Dr Pelle Gustafson · Swedish Patient Insurer
George Deebo · Virginia Birth-Related Neurological Injury Compensation Program
Guy Forster, Association of Personal Injury Lawyers
Lauren McGuirl · Centre for Effective Dispute Resolution
Michael Mercier, Accident Compensation Corporation
Peter Walsh, Action Against Medical Accidents
Professor Shin Ushiro · Division of Patient Safety Kyushu University Hospital, Executive board member Japan Council for Quality Health Care
Simon Hammond · NHS Resolution
16 Nov 2021
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Dr Sonia Macleod · The Centre for Socio-Legal Studies
Joanne Hughes, Expert by experience
Scott Morrish, Expert by experience
Sir Ian Kennedy QC
Sir Robert Francis QC · HealthWatch England
Sue Beeby, Expert by experience
Reports 1 report · click to expand
| Title | HC No. | Published | Items | Response |
|---|---|---|---|---|
| Thirteenth Report - NHS litigation reform | HC 740 | 28 Apr 2022 | 34 | Overdue |
Recommendations & Conclusions
34 results
1
Conclusion
Thirteenth Report - NHS litigation…
Clinical negligence system requires shift from punitive approach to encourage cooperation and learning.
In 2005 the New Zealand Parliament made a conscious choice to alter the legislation underpinning their system of clinical negligence because they wanted to change from a punitive system to one that would encourage the co-operation of hospitals and medical …
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Department of Health and Social Care
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2
Conclusion
Thirteenth Report - NHS litigation…
Clinical negligence system hinders patient safety learning and improvement
Clinical negligence cannot and does not inform or disseminate learning or systematically contribute to patient safety improvements. It is not its purpose and too much information is filtered out at an early stage to ever make this a realistic prospect. …
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Department of Health and Social Care
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3
Conclusion
Thirteenth Report - NHS litigation…
Costs of claimant law firm screening likely passed to taxpayers
Some claimant organisations said the screening process, as carried out by specialist claimant firms, prevents a significant cost that NHS Resolution would otherwise incur. Claimant costs, however, account for a fifth of all cash payments associated with clinical negligence and …
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Department of Health and Social Care
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4
Recommendation
Thirteenth Report - NHS litigation…
Establish an independent administrative body to investigate patient harm and determine compensation
The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning. We recommend that when a patient is harmed, they or their family should be …
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Department of Health and Social Care
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5
Conclusion
Thirteenth Report - NHS litigation…
New patient compensation system requires staged implementation, prioritising birth injuries
We recognise that our recommendations would radically change the principles which underpin the way injured patients are compensated and the Bar Council said that to introduce a new statutory administrative scheme would be “a project of phenomenal ambition.” Given the …
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Department of Health and Social Care
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6
Recommendation
Thirteenth Report - NHS litigation…
Focus new administrative patient compensation system initially on obstetric cases, then expand
As it becomes embedded within the framework of the NHS, we recommend that, in the first instance, the new administrative patient compensation system should be focused on obstetric cases which align with the Each Baby Counts criteria. Once established, and …
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Department of Health and Social Care
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7
Conclusion
Thirteenth Report - NHS litigation…
Reconstituting Strategic Health Authority could efficiently implement new compensation recommendations
The Government is creating a new Strategic Health Authority (SHA) to investigate serious incidents and improve safety in maternity care. We believe that reconstituting the SHA to investigate claims, establish the causes of harm and determine eligibility for compensation would …
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Department of Health and Social Care
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8
Conclusion
Thirteenth Report - NHS litigation…
Beneficiaries of current negligence system defend it despite rising costs and weak evidence
We are concerned only with the dynamics of the legal market in so much as they affect the ability of injured patients and their families to access compensation, and the system to learn and improve safety. However, we note that …
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Department of Health and Social Care
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9
Conclusion
Thirteenth Report - NHS litigation…
Administrative compensation system reduces adversarial process and lowers overall costs
The advantage of an administrative system is that criteria can be established to remove uncertainty and turn what otherwise would be an adversarial process into one concerned only with the facts of the case. Compensation should be based on agreement …
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Department of Health and Social Care
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10
Recommendation
Thirteenth Report - NHS litigation…
Consult widely and evaluate best practice to establish administrative patient compensation system criteria
Establishing the precise criteria for an administrative patient injury compensation system based on system error is a complex task. We have taken evidence from various successful international schemes that each use a different threshold and we do not seek to …
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Department of Health and Social Care
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11
Conclusion
Thirteenth Report - NHS litigation…
No evidence found to change recommendation to remove disregard of NHS care in damages
In our July 2021 report examining the safety of maternity services, we recommended that the Government remove the disregard of NHS care in the award of damages. We have seen no evidence to change our recommendation. To argue that patients …
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Department of Health and Social Care
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12
Conclusion
Thirteenth Report - NHS litigation…
Administrative compensation scheme should offer generous, uncapped awards covering private care costs.
There is no reason why an administrative scheme should be any less generous in the compensation it awards than the courts, not least because damages would not be top sliced to meet claimant legal costs. Within the administrative compensation system, …
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Department of Health and Social Care
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13
Recommendation
Thirteenth Report - NHS litigation…
Base compensation for NHS clinical negligence on additional care costs and repeal 1948 Act.
Compensation should be based on the additional costs necessary to top up care available through the NHS and social care system, rather than the current assumption that all care will be provided privately. Whilst we recognise that additional care costs …
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Department of Health and Social Care
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14
Recommendation
Thirteenth Report - NHS litigation…
Scrap parental income assessment for child clinical negligence claims; standardise compensation against national wage.
The assessment of parental earnings in the calculation of damages for children under 18 years of age is unfair. It undermines the principle that damages should be calculated to meet a person’s needs and contradicts the principle of equality that …
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Department of Health and Social Care
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15
Conclusion
Thirteenth Report - NHS litigation…
Introduce administrative compensation scheme to provide better value for money to the taxpayer.
There is strong evidence that an administrative compensation scheme would provide better value for money to the taxpayer than clinical negligence litigation. There is significant potential to strip away the vast legal costs which account for over a quarter of …
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Department of Health and Social Care
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16
Conclusion
Thirteenth Report - NHS litigation…
Clinical negligence litigation hinders patient safety learning, contrasting with no-blame investigations.
Clinical negligence litigation stands in stark contrast to best practice in terms of patient safety. Gains are made by careful system-wide analysis rather than the search for individual blame. The creation of the Health Services Safety Investigations Body as a …
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Department of Health and Social Care
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17
Conclusion
Thirteenth Report - NHS litigation…
Clinical negligence litigation inhibits learning culture and thorough investigations into serious incidents.
It is not within the scope of clinical negligence litigation to encourage the culture, or support the mechanisms, to identify learning from serious incidents. Neither can the process of litigation disseminate learning and enhance patient safety. Moreover, the experience of …
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Department of Health and Social Care
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18
Recommendation
Thirteenth Report - NHS litigation…
Reform investigatory system by establishing standardised, time-limited, independent investigations after medical errors.
Aside from the substantive reform of clinical negligence litigation that we have recommended, we also believe that the investigatory system should be reformed. After any tragedy involving medical error there should be a standardised process of investigation which focuses on …
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Department of Health and Social Care
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19
Recommendation
Thirteenth Report - NHS litigation…
Mandate independent administrative body investigations for alternative dispute resolution and compensation liability.
We further recommend that, in parallel, an investigation by an independent administrative body responsible for alternative dispute resolution should be completed and a determination on liability for compensation released to the family, the Trust and NHS Resolution. The Trust and …
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Department of Health and Social Care
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20
Conclusion
Thirteenth Report - NHS litigation…
Administrative compensation system improves investigations, requiring formal separation from external regulatory processes.
In the longer term, an administrative compensation system would address problems associated with inadequate investigations by undertaking inquisitorial, system- focused investigations with no examination of individual blame. This would build greater confidence amongst healthcare professionals that they could be open …
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Department of Health and Social Care
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21
Recommendation
Thirteenth Report - NHS litigation…
Restrict sharing of administrative investigation information; agree MoU with the Chief Coroner.
We recommend that information obtained by the administrative body in its investigations should not be shared with any other professional or system regulator unless it constitutes unlawful activity or identifies an immediate danger to patients. We also recommend that the …
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Department of Health and Social Care
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22
Conclusion
Thirteenth Report - NHS litigation…
An independent administrative system would improve birth injury compensation for patients and families.
An independent administrative system designed in the first instance to provide compensation in birth injury cases would be much more responsive to the needs of patients and families. Without a contentious legal battle, eligibility would be established quickly and support …
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Department of Health and Social Care
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23
Recommendation
Thirteenth Report - NHS litigation…
Incorporate periodical review into compensation awards to meet patients' changing needs over time.
The most effective system would be one that can provide initial compensation within weeks of a claim and then be adapted to meet the individual child’s requirements as they grow and develop. We recommend that awards be made with periodical …
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Department of Health and Social Care
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24
Conclusion
Thirteenth Report - NHS litigation…
Patients prefer simpler administrative compensation, which should be the mandatory first port of call.
Although our system would be no less generous in its awards than the courts, patients would still retain the option of pursuing clinical negligence cases and seeking redress via litigation. Evidence from abroad indicates, however, that when given the choice, …
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Department of Health and Social Care
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25
Recommendation
Thirteenth Report - NHS litigation…
Make litigation an option for claims only after pursuing the administrative system first.
Therefore, we recommend that litigation should become an option for claims covered by the administrative system only after the claimant has pursued their case through the administrative system.
Department of Health and Social Care
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26
Conclusion
Thirteenth Report - NHS litigation…
Valued solicitor support in litigation highlights the need for systemic change and wider advocacy.
We heard powerful testimony from people who have been through litigation about how they valued the support from solicitors who become their advocates and guides within the labyrinthine process. Whilst we do not doubt that there are many excellent solicitors …
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Department of Health and Social Care
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27
Conclusion
Thirteenth Report - NHS litigation…
Transition to an administrative system to avoid intensive legal support and lottery of representation.
In the system we recommend, someone with a claim would not need intensive legal support as their claim would be evaluated inquisitorially without months or years of toil to demonstrate clinical negligence. It is also important to note that there …
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Department of Health and Social Care
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28
Conclusion
Thirteenth Report - NHS litigation…
Serious cases remain adversarial, complex, and slow despite efforts to avoid court proceedings.
Settling cases without court proceedings is positive but does not necessarily mean that injured patients will not experience an adversarial, complex and expensive process. The most serious cases still take years to settle rather than weeks or months. NHS Resolution’s …
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Department of Health and Social Care
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29
Recommendation
Thirteenth Report - NHS litigation…
Mandate compulsory alternative dispute resolution mechanisms before issuing any court proceedings.
We recommend that before any court case there should be compulsory use of alternative dispute resolution mechanisms. This often happens before the start of a trial but should happen before the issuing of any court proceedings. We recommend that the …
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Department of Health and Social Care
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30
Conclusion
Thirteenth Report - NHS litigation…
Clinical negligence framework focused on individual blame hinders early fault admission and settlement.
It is understandable that representatives of injured patients should wish to see fault admitted and cases settled early, but the statutory framework on which clinical negligence is based makes this very difficult. Clinical negligence is focused on individual blame, therefore, …
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Department of Health and Social Care
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31
Recommendation
Thirteenth Report - NHS litigation…
Ensure adequate hospital staff are trained in 'just culture' to reduce confrontation and breakdown.
NHS staff, injured patients and families need greater support in dealing with the fallout from clinical negligence cases. We recommend that every hospital should have adequate numbers of staff trained in “just culture” practices to reduce confrontation and relationship breakdown …
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Department of Health and Social Care
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32
Recommendation
Thirteenth Report - NHS litigation…
Require Government to explain settlement of clinical negligence cases without negligence being established.
We heard that there is no leeway for NHS Resolution to concede cases on any basis other than clinical negligence, but this was challenged by academic evidence we received. In response to this report, the Government should provide an explanation …
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Department of Health and Social Care
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33
Recommendation
Thirteenth Report - NHS litigation…
Require Government to set out safeguards ensuring fixed recoverable costs do not restrict access to justice.
We are concerned that the Government’s proposal to introduce Fixed Recoverable Costs in clinical negligence cases below £25,000 may compromise access to justice for the poorest claimants. The Government is right to try and rein in excessive legal costs, but …
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Department of Health and Social Care
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34
Recommendation
Thirteenth Report - NHS litigation…
Mandate NHS Resolution to consider administrative compensation offers as Part 36 offers.
Once an administrative scheme is established for all clinical negligence claims the future of Qualified One-Way Costs Shifting (QOCs) in clinical negligence cases against the NHS should be considered. The Government has said the purpose of QOCs is to minimise …
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Department of Health and Social Care
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Correspondence 1 letter
20 Apr 2022
To committee
Letter from the Permanent Under Secretary of State for Primary Care and Patient Safety correcting oral transcript from 1 February evidence session on NHS litigation reform
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