Lord Sharkey
To ask Her Majesty’s Government what are the causes of the £3.1 billion increase in the National Health Service’s potential liabilities for clinical negligence to £25.7 billion between 31 March 2013 and 31 March 2014.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, there are several factors behind this increase. These include the rise in numbers of patients cared for and the complexity of their care. In addition, there has been a general rise in litigation across a number of sectors, including the NHS, which is driven in part by no-win no-fee agreements. High costs incurred by claimants in bringing civil litigation have also played a role in the increasing clinical negligence cost and associated provisions.
Lord Sharkey (LD)
In the last five years, NHS spending has grown by 12%. In the same period, liabilities for negligence have actually doubled. With the current rate of growth, they will take only six years to reach around £50 billion. The Medical Defence Union thinks that is unsustainable and has suggested reducing liabilities by changing the law. It suggests allowing courts to take account of the fact that the NHS and local authorities can provide some of the treatments required by successful claimants. Does the Minister agree that this is part of the way forward?
Earl Howe
My Lords, moneys paid in settlement of clinical negligence claims cannot be reclaimed or recycled in the way that my noble friend appears to suggest because, in the nature of NHS care, it is free from the patient’s perspective. We are, however, concentrating on various ways to reduce the number of clinical negligence incidents and, indeed, to improve patient safety, which is of course part of the way in which we can reduce the number of claims in the first place.
Lord Hunt of Kings Heath (Lab)
My Lords, what view have the Government taken of the Medical Defence Union recommendation for repeal of the Law Reform (Personal Injuries) Act 1948? In essence, that would mean defendants could buy NHS healthcare packages as opposed to the more expensive private care packages, and, presumably, would reduce some of the cost of the claims that are currently going through.
Lord Willis of Knaresborough (LD)
My Lords, following the passage of the Health and Social Care Act, there are now some 350 other qualified providers. Will my noble friend confirm that they all get support through the Department of Health for any clinical negligence claims? If that is so, how much was paid out in 2013? Further to the point made by the noble Lord, Lord Hunt, if a claim is made within the private sector or third sector, will such providers be prevented from providing that claim within their organisations if negligence was proven?
Earl Howe
My Lords, potentially, independent sector providers may elect to be members of the negligence scheme, although only in respect of their NHS services. Therefore, only NHS-related liabilities would be covered in those circumstances. It is a pay-as-you-go pooled scheme, and I do not therefore have the figure that my noble friend requested. If I can get the figure disaggregated for him, I would be happy to write. In answer to his last question, I take it that he is asking whether the provider would be allowed to continue treatment, having been found to be negligent or having admitted negligence. That decision would be clinically led, with the patient exercising choice in each individual case.
Lord McFall of Alcluith (Lab)
My Lords, may I suggest an examination of the area of clinical governance? I and my family are not alone in having a negative experience of a disjointed, rather than an integrated, clinical governance network, where communication between departments and individuals was virtually non-existent. The admirable Reith lecturer, Dr Atul Gawande, examined the concept regarding why doctors fail, and one of the main reasons he came up with was that policies that fragment a unified system rather than cohere the system were in the interests of neither patients nor the NHS, as can be seen with these claims.
Earl Howe
The noble Lord makes a series of good points. He may be interested to know that part of the series of pledges that form the Sign up to Safety campaign, which hospitals can apply for, can include the principles of being transparent with people—including about any mistakes that have been made and what is being done to tackle safety issues—and collaboration, by taking a leading role in supporting local collaborative learning, so that the system genuinely can work together and learn together.
Lord Phillips of Sudbury (LD)
My Lords, is my noble friend satisfied—I am thinking, for example, of the scandal of whiplash claims—that the legal resources available to the NHS are sufficient for the task?
Baroness Finlay of Llandaff (CB)
My Lords, does the Minister agree that complaints need to be dealt with rapidly, preferably by a phone call or home visit, rather than in the current slow systems that often compound the anger of those who feel that they have been wronged by the NHS and which therefore make the procedure of litigation more likely? There should, rather, be rapid settlement, a very sincere apology and lessons learnt with follow-up.
Earl Howe
I agree with the noble Baroness. We view it as important that NHS organisations manage complaints in a positive manner and use the information obtained to improve service delivery. Saying sorry is important. People who complain often want an apology, an explanation and an assurance that the same thing will not happen to someone else.
Lord Roberts of Llandudno (LD)
My Lords, do the figures we have been given today include Wales, Scotland and Northern Ireland? Are those claims included in the total figure?