Lord Mackay of Clashfern
To ask Her Majesty’s Government whether the liability costs to the National Health Service in England that relate to negligence can be reduced; and, if so, how.
Lord Mackay of Clashfern (Con)
My Lords, I intend to read what I have said. It is very unusual for me to do so and I hope that I will read it reasonably well. I do it because I sent a copy of what I am going to say to the Minister, as I am going to make some suggestions and I thought it only sensible that she should know what they were because trying to answer them immediately might be slightly more difficult, so it is in the hope that it will be practical that I do this.
My first appearance here as a junior advocate was in a clinical negligence case. Your Lordships will understand that that was not yesterday or the day before, and I have done a number of these cases in a more senior role since. I should say, in order to deal with the idea of any sort of specialty, that I am an honorary fellow of three royal colleges—particularly, in this area, the Royal College of Obstetricians and Gynaecologists.
In the last year the cost to the NHS of clinical negligence was £2,209.3 million, of which claimant legal costs were £448.1 million. The cost to the NHS of its own service is shown as less, but the two are not properly comparable because the NHS costs do not include the staff costs and that kind of thing. That was confirmed in a Written Answer some time ago. It is sometimes suggested that this is due to the existence of conditional fees—some doctors seem to think that conditional fees have caused this—but I point out that not a penny goes out on that basis unless fault is agreed or established on the part of the NHS.
I ask the Minister to say whether, when a fault is established or agreed against the NHS, the whole service is warned to avoid repeating it. It seems to me that that would be one of the best ways of cutting down examples of negligence. Once something has happened, it is important that everyone is warned against it happening again. These things are apt to be quite common.
One of the first cases that I did involved the death of a person in anaesthesia. The reason was that the machine that was used had two levers, one for shutting out the oxygen and the other being set to allow the oxygen in. The anaesthesiologist in charge of dealing with this child did not notice that the lever was down and the oxygen was shut off. They could not understand what was wrong and sadly the child died before they discovered it. If that happens, it should be broadcast right across the area of the NHS that is using that kind of facility so that it can be stopped immediately. That is such an obvious thing to happen. What arrangements are there in the NHS for spreading the news of a fault in order that it be not repeated?
On damages, I strongly advocate the repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948. In my experience, two principal factors increase damages. One is that the fault occurred at or near birth, so the damages take account of the whole of life, which is why those damages are especially high. The second is that the loss of earnings resulting from the fault is large. Generally, the NHS treats all patients equally and I suggest that it would be appropriate to cap the rate at which loss of earnings can be recovered by perhaps a multiple of the current average wage. That could be made public and any patient undergoing treatment whose income was higher than the cap could, I suggest, make an insurance arrangement accordingly.
In the case where the liability of the NHS is established, there is scope for excessive claimants’ costs. I suggest that a table of allowable costs linked to the amount of damages could be used to mitigate this with a provision—I can see that there are cases requiring this—that the court should have a power in a particular case involving special difficulty not provided for in the table to award a larger figure.
I should add that over my career I have been involved in many discussions of alternatives to the judicial system: administrative systems, systems that make it automatic and so on. I have never found, or been involved in, a decision to accept anything of that sort as satisfactory. I honestly believe that the judicial system is the most efficient and fair-minded system that you can have.
One of the great difficulties is that inevitably there is a distinction between what is caused by fault and what is natural. What is caused by fault will be subject to compensation and what is natural will obviously not. Often the investigation into the cause is the centre of the investigation that normally takes place. These are humble suggestions made with a view to trying to help the NHS to devote the money that it gets to front-line services rather than paying out to people who have been harmed, more or less, in their course of treatment by the NHS.
Lord Kirkhope of Harrogate (Con)
My Lords, speaking in the presence of senior lawyers as a humble simple solicitor is always, to me at least, rather a trial. When I first came to the House of Lords, I made the serious error of speaking with what I had self-styled authority on a particular Supreme Court case. My failure to read the speakers’ list properly led me to be somewhat humiliated when the next speaker had been a member of the Supreme Court and had deliberated on the case that I was citing. I learned my lesson, so I shall be very careful in the presence of eminent lawyers in what I have to say.
In preparation for this short debate, I thought that I would supplement the usual excellent Hansard extracts and our Library briefings with some extra material gleaned from the world wide web. As a lawyer, I have become used to the new permitted advertising, hopefully tasteful, that my profession has undertaken in recent years, but I was astonished to find that under the heading of “medical negligence” it was almost impossible to find anything of an objective, instructive or helpful nature among the plethora of law firms and quasi-legal entities offering very strong encouragement to citizens to pursue medical negligence claims.
We are all of course aware of initiatives taken by some legal firms to pursue group actions, where they try to encourage us to find fault with motor cars that do not quite come up to specifications—I think that all of us have seen that. My legal training always suggested to me that a simple principle was no compensation without a proof of loss. However, that does not seem to be the case anymore, so without trespassing on the current cases, I wonder how that principle is being maintained. There have been times when I have been sitting at home and relaxing at the weekend when I have suddenly had a phone call telling me that I have had a car accident and asking whether I would like to claim large sums of money as a result.
I am not for a moment suggesting that medical negligence cases are anything but proper and necessary where the negligence is clear and should be punished or accounted for. My problem lies with the way in which claimants are sometimes encouraged to come forward: “no win, no fee”, “our 30-second claim calculator”, “getting results for you” or “no need to go to court because financial settlements are quite common” et cetera. I wonder how many times the NHS finds it cheaper and more convenient to pay out money without accepting liability after receiving threats of this kind—and threats of court action as well. No test of the issues ever takes place in such cases.
My trade union, the Law Society, has commented on government plans to introduce fixed costs for smaller claims against the NHS in changes to Civil Procedure Rules. This is against a background where, often, the legal costs in such cases far exceed the actual compensation obtained. I agree that even in smaller claims we should not restrict a solicitor’s ability to work on them to the highest standards, but, if possible, we need to avoid the need for expensive and drawn-out exercises. More generally, the way in which claims are handled by the NHS bodies, including NHS Resolution, is a cause for concern. My noble and learned friend has already highlighted the enormous sums paid out for claims and legal costs—more than £2 billion a year, 1.5% of the entire NHS budget.
A Cambridge University paper on clinical negligence and evidence, published in July this year, highlights the problems in assessing cases. It reminds us that in order to succeed in a claim against the NHS four elements must be proven in the law of tort: first, that the health provider had a duty of care to the claimant; secondly, that such a duty of care was breached; thirdly, that the breach caused the claimant some form of loss or harm; and, fourthly, that at least one of the losses caused by the provider’s breach is actionable. This is the common law and it is based on the interpretation of a greater than 50% probability that a breach of care led to private losses. I think that some medico-legal advertisers should be reminded of those elements as well.
The other problem, even when these basic hurdles are passed and liability is proven or accepted, is the question of quantum: how much? What is the level of economic and social redress or individual loss and what level of punitive damages should be awarded? In the latter case, is there evidence that punitive damages have a direct effect on improving standards and, more specifically, ensuring that those who were responsible for the negligence suffer consequences or, at the very least, change their processes or work systems to avoid further episodes? They should of course be aware of any claims or judgments that have involved them in the first place, but that is not always the case.
So far, I have been speaking as a lawyer and looking at these issues from an outside perspective. Some years ago, I was a member of a regional health authority and then a founder member of the Mental Health Act Commission.
I want to conclude by examining the ever-increasing number of claims for medical negligence and the actions that might or should be taken by the NHS to minimise them. The first must be to generally improve standards and patient safety, as my noble and learned friend referred to. This is easy to suggest, but it must be seen against a background of intense pressure on staff and the service generally, as well as resource limitations. Secondly, we need to analyse where the claims are mostly concentrated. The Public Accounts Committee has identified that a large number of high-value claims are related to maternity care. Recent figures suggest that up to 50% of the value of claims were in this field, though only 10% of the number of claims.
Thirdly, the NHS must pursue alternatives through mediation and dispute resolution. Not everybody wants to litigate, even if they are sometimes over-encouraged. Sometimes they just want to be acknowledged and have their concerns recognised, with actions taken to improve standards. Fourthly, the NHS should not prevaricate or delay settlements where the evidence is clear; dragging out proceedings for months or years increases costs on all sides. Finally, as regularly recommended, including by NHS Resolution, learning from mistakes and improvement should be priorities for health managers and professionals in the service. They should be able to lead and be more responsible for health outcomes. This is an important subject for debate and I am pleased to have been able to make a small contribution.
Lord Lansley (Con)
My Lords, I am pleased to follow my noble friend, who has made an interesting and helpful contribution, not only from the legal point of view but from that of policy. We are all grateful to my noble and learned friend for initiating this debate, which gives us an opportunity to refer to some things that would help the NHS. In the process, we might also provide some additional emotional, physical and practical help to those who suffer harm as a consequence of failings in NHS treatment.
I do not come at this as a lawyer at all. I had responsibility for the health service for a while, but I probably devoted more time and energy to thinking about this issue during the passage of the NHS Redress Act 2006, when I was the shadow Secretary of State, than at any other time. Noble Lords will be aware that we in Parliament often devote our time to such Bills in the fond expectation that someone will do something with them afterwards. That did not happen with the redress Act; it was not commenced. There was a Labour Government at the time and we had a pretty full debate on it. I do not entirely agree with the Act, but I would say two things about it.
First, I think that at the end of the day we all subscribe to the proposition that we should not go down the route of a no-fault compensation system. My view has always been that it is incredibly difficult to distinguish between harm resulting from the fact of a disease and harm resulting from the treatment for that disease. In my case, I have had radiotherapy, surgery and so on; I have consequences, but I do not think that the NHS did anything other than look after me splendidly. Radiotherapy causes damage, but I do not expect that I should be compensated for that damage.
That leaves us with a third category, where I think that we have a taxpayer responsibility: harm that results from treatment that is not up to the standard that patients have a right to expect and, as my noble friend said, that the duty of care would require. If that duty of care is breached and harm results, a liability is established. I think that we were quite clear at the time and have continued to take the view that we should focus on trying to ensure that, where harm results from a poorer standard of treatment, compensation should arise.
The second thing that came out of all this was that it is absolutely clear that what patients and their families are looking for is openness and transparency— an understanding that something went wrong, an acknowledgment of fault and a desire and willingness to learn from it and to do better in future. Very often, what you hear from patients and families is that they do not want this to happen to somebody else again. In that respect my noble and learned friend is absolutely right.
How do we learn from this? The Health and Care Bill starts here next week and there are patient safety aspects to it, but a lot of this rests on the way in which the NHS manages itself. Of course, those who are responsible for NHS services are incentivised directly by the Care Quality Commission and the way in which it conducts its reports and looks at the services provided, and by NHS Resolution itself. The way in which the NHS funds this is through the payment of what are in effect premiums to NHS Resolution, which is effectively an insurance system for the NHS and indeed for private providers of NHS services and now for general practitioners as well. It does so on the basis that the premium charged is related to an extent not only to the risks that are run but to the standard of service that is being offered. There are direct incentives from NHS Resolution to trusts to get it right and we want to sustain that.
If I may, I will make passing reference to the report from our noble friend Lady Cumberlege. I think that she might wonder, as I do, whether we cannot use NHS Resolution more, to be an agency through which categories of patients who have sustained harm can be in a scheme for compensation, rather than simply operating on the basis of claims that are brought directly before the courts.
I turn to the courts and in a sense respond to the question asked by my noble and learned friend in this debate. Out of the NHS Redress Act and subsequent thought come three things. One is that we argued in 2006 for a fact-finding phase. A lot of the costs entailed in cases brought before NHS Resolution are down to expert witnesses and legal representation. We can significantly reduce those costs if there is a shared fact-finding phase that then has to be accepted as the basis on which a negotiated settlement might emerge. That was not built into the Act at the time, but I still think that we should go down that path.
Secondly, there is the question of the discount rate. It was probably about the time I was Secretary of State that suddenly the cost to the NHS of negligence claims increased dramatically—I think that it nearly doubled—and this was simply because the discount rate changed. Very low interest rates equate to very large sums required to deliver a given standard of care, and the costs associated with it, over a long period. We cannot just go around manipulating the discount rate, and my noble and learned friend will say that there is a lot of history to all this, but I think that what we could do—I will finish with this—is at least address the issue that half the cost of claims relates unfortunately to maternity services and the consequences for neonates and very small children. These are lifelong costs and the NHS very often meets many of them, whether through its own services or through NHS continuing healthcare.
As I understand it, the court does not really take account of that. What it sets out to do is provide a sufficient sum by way of damages that would allow the family to be compensated to the extent that they can provide all the services that are required for the child. The fact that these services will be provided by the NHS is not sufficiently taken into account. We should go down the path of saying that, where the NHS comes in and looks after somebody following an acceptance of fault, the level of damages that should be paid as a consequence should be reduced.
I am grateful to have had the opportunity to say a few things on this. I think that it is very much unfinished business, not least because of the lack of action on the NHS Redress Act 2006. I hope that this will be a spur to action, following what my noble and learned friend has brought before us.
Lord Keen of Elie (Con)
My Lords, I begin with an apology. I did not timeously put my name down for this debate, but I am extremely grateful for the opportunity to say a few words on this topic. I am particularly grateful to my noble and learned friend Lord Mackay of Clashfern for having raised this matter at debate.
I begin by simply posing one question for the Minister: when will the Government publish their consultation on this issue? I understood that it would be available by the end of the year, but that rapidly approaches.
I do not wish to indulge in repetition, but we should bear in mind that the second largest contingent liability of the United Kingdom Government is clinical negligence claims, at about £83 billion, which is slightly short of the disposal of nuclear waste. The cost on an annualised basis to the National Health Service has already been mentioned: almost 2% of its annual budget. In those circumstances, I suggest that a more radical approach to the whole issue is required rather than tinkering. I fully accept that improvements in maternity care could have a material impact on the cost of clinical negligence claims, as those long-life claims represent something like 60% of the cost to NHS Resolution. While, for example, an amendment to Section 2 of the 1948 Act would be welcome, it applies only in respect of hospital care costs, not social care costs. When you are looking at catastrophic injury in childbirth, the vast majority of the costs arise in the context of social care costs, not hospital costs. Again, it may help, but it has only a peripheral benefit.
I suggest that we begin by acknowledging the social contract that exists with those who are able to engage in a health service that is free at the point of use. That would allow us to take the whole issue of liability out of the law of tort and into some sort of administrative scheme. One of the advantages of that would be the following. One considers this from the point of view of the victim or their family, but there are two sides to this. There is also the professional reputation of those whose professional ability may be impugned by a claim based on negligence. That is why it is so often difficult to resolve these issues without recourse to the courts, although I note that NHS Resolution is able to resolve more than half these claims without litigation.
Again, at the end of the day, litigation costs are only peripheral. I therefore strongly urge that, instead of looking at one or two individual issues such as improvement in maternity care or the repeal of Section 2, we should pause and consider a far more radical approach to the way in which we deal with the demands that arise from these cases. That may take us beyond the question of tortious liability into an area of no-fault liability, as suggested by the NHS Redress Act 2006. I am obliged to noble Lords for allowing me those few words.
Baroness Brinton (LD) [V]
My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for calling this important debate. I note that this is not a new issue to your Lordships’ House. My noble friends Lord Sharkey and Lord Storey have both raised questions on the failings of the current system of liability rules over the last three years. From these Benches, our starting point and what we believe should be the legislative priority must be that any patients injured by negligence are rightly entitled to compensation and their appropriate legal fees should be paid.
The fact that this debate takes us into the technical intricacies of clinical negligence cases must not distract us from the real problem at hand. As we have heard, the current system is heavily weighted against a patient or their family fighting for that justice and compensation. In our view, this needs to be changed.
I am not a lawyer and I am in awe of the legal debate that has just preceded my small contribution. I am particularly grateful to the noble and learned Lord, Lord Mackay, for his expert introduction on the legal problems in the current system of liability costs. I note most particularly the problems with the NHS Redress Act 2006, which proposed redress without recourse to civil proceedings but which, unfortunately, enabled the NHS to investigate itself. It is therefore perhaps not surprising that it has totally failed and has left patients and their families in a ghastly nightmare world of fighting for compensation following negligence against an enormous organisation that seems to have unlimited resources.
I listened with interest to the radical proposals of the noble and learned Lord, Lord Keen, which sounded very interesting. As the noble and learned Lord, Lord Mackay, outlined, unfortunately negligence does occur, and much more frequently than people understand. Comments have already been made about maternity services, where there is a particular issue. I have a particular interest in the lives of severely disabled children, some of whose conditions have resulted from clinical negligence at their birth.
So far, individual problems of trying to live with some of that negligence have not been mentioned, so I shall speak briefly about one family I know, who had to take on the NHS and were absolutely determined to use every legal technique in the book. Their child was starved of oxygen at birth and requires looking after 24 hours every day, which requires amendments to their house and support in lots of different medical areas—so it is costing the NHS money as well. As their child has started school, it has required schooling needs, transport to and from school and respite care for the family, who are doing most of this 24-hour care themselves—all running alongside a perpetual battle with NHS lawyers over the claim.
There are other horror stories, too, which have appeared in the press, about case files being lost in hospitals and staff being reluctant to come forward and speak, which tells me that there is a real cultural problem about the current system, whereby staff inside the NHS are worried about blame and the impact on their careers, and the lawyers are doing anything they can to avoid having to pay out large sums of money. The noble Lord, Lord Kirkhope of Harrogate, made a very important point about improving standards inside the NHS, but that cannot happen until the cultural attitudes about blame mean that it becomes possible to learn across the NHS from mistakes. The noble Lord, Lord Lansley, mentioned interestingly the debate about whether no-fault compensation should be applied, and the difficulties associated with that.
I come back to the patients, who do not want anyone else to have to go through the battle that they face. I absolutely echo the comments of the noble Lord, Lord Lansley, about using NHS Resolution—except that there are now five different branches of that. I really think that we need to learn from the report of the noble Baroness, Lady Cumberlege, First Do No Harm, and the imminent appointment of the first patient safety commissioner for medical devices. We hope that that will be an independent system. As we heard in Oral Questions this morning, we have yet to see the exact timing of the appointment of the first commissioner, but we are also looking to see that the SIs brought forward to your Lordships’ House will make it clear that it has to be an independent role.
I see that in negligence claims there might be some mechanism for a person independent of the NHS. It is absolutely vital that this is reviewed, and I echo the question from the noble and learned Lord, Lord Keen, on when the government recommendations will be published, as we are certainly running out of time for end of the calendar year. As this is unfinished business, it is still affecting the lives of patients and their families every day, as well as vitally reducing funds for our hard- pressed NHS as money is spent on fighting these cases.
Baroness Wheeler (Lab)
My Lords, I, too, thank the noble and learned Lord, Lord Mackay, for securing this important debate and for his expert and insightful introduction. As the noble Baroness, Lady Brinton, stressed, your Lordships’ House has regularly over the years debated and supported measures to try to halt the steady and alarming increase in NHS litigation costs and to ensure that the lessons learned from the appalling cases of neglect that we all too often have to consider can be used to both prevent further harm and promote future patient safety.
The debate is timely, as the Commons Health and Social Care Select Committee inquiry into NHS litigation reform undertakes its crucial work, following the evidence sessions earlier this year. That is where I was able to get a lot of material for today’s debate. It is also timely because we now have the resurrected Health Service Safety Investigations Bill, scrutinised in depth by a Joint Committee of both Houses, which started its passage in this House two years ago. This time it is part of the Health and Care Bill, which we will commence work on next week.
We strongly supported the original Bill and were very disappointed when it suddenly fell off the Government’s radar. Despite efforts from across the House, Ministers were unable to explain where it had gone and why it was not being vigorously pursued in the light of the urgent imperative to embed the lessons-learned culture into the NHS.
The aim of the health service safety investigations body is to improve the quality of locally conducted investigations and, through its own high-quality investigations and better-conducted local investigations, to reduce the incidence of future harm in the NHS. This is to be achieved through an improved process of capturing and acting on learning, although the extent to which this happens will largely depend on the actions of other organisations in the system rather than the HSSIB itself.
While these benefits cannot be quantified, the expectation and hope are that they will outweigh the monetary costs incurred by the investigations, avoid costs associated with correcting or compensating for harmful incidents, and generate health gains, anticipated to be sufficient to offset the costs associated with making any necessary improvements in investigative practice and systems and/or safety. As we have heard today, those are all both urgent and pressing.
It is estimated that, if the lessons generated from HSSIB investigations could reduce patient safety incidents and in turn clinical negligence claims by just 0.3%, this would level out the £6.2 million per annum investment in its role and work, and lead to a significant reduction in current NHS litigation costs. The importance of protecting the HSSIB’s independence and its ability to provide the safe space to participants in investigations are key issues that we will pursue in the Health and Care Bill. These are obviously for the discussions that will begin next week, not for today.
On costs, the Health and Social Care Select Committee’s terms of reference point out that an additional £7.9 billion was spent on compensation from claims settled in previous years, meaning that more than £10 billion that could have been spent on patient care was spent on clinical negligence. Most worryingly, the Medical Defence Union’s evidence to the inquiry predicted that any money raised by the new health and social care levy would be entirely swallowed up by the amounts paid each year in NHS clinical negligence claims. What is the Government’s assessment of this claim? How does it impact their plans to reduce the huge NHS waiting lists for treatments? Most importantly, what money will be left for social care?
The Minister has reassured the House previously that the Department of Health and the Ministry of Justice are working closely together to identify ways of reducing costs. I look forward to receiving an update on this and other cross-government work that is being undertaken, the progress being made and intended timescales for action.
We have heard expert contributions today, covering many of the key issues that the Health Committee is examining: the legal and systemic changes needed to how compensation is awarded; how processes can be simplified so that claims can be speeded up and patients receive redress more quickly; and how adversarial legal processes can be changed and collaboration requirements between the legal advisers representing both sides of claims can be strengthened to facilitate earlier constructive engagement between the parties and end the often drawn-out and protracted processes that cause such distress and frustration to patients and their families, as we have heard today. Underlying them all is the importance of the system being able to learn from common failures—medical, procedural, training or managerial, policy or technology. The priority of better, safer care must be paramount.
One of the advantages of today’s debate is, as noble Lords have said, the valuable and timely spotlight it places on the work of NHS Resolution, the body that defends claims. It is sobering to note that, in the context of establishing the two Covid 19-specific indemnity schemes, £0.5 billion has been added to the estimate of future claims. Also, although the number of claims is expected to be down because of fewer operations and less treatment, and therefore fewer errors from potential clinical negligence, claims against primary care since NHS Resolution added this area to its portfolio in 2019 have seen a 40% increase.
Overall, we have a mixed picture. The cost of medical negligence has fallen for the second year running, although the percentage attributed to maternity claims has not changed—as noble Lords have stressed—while the cost of damages awarded has increased without a rise in the total number of cases. On maternity care, it will be helpful if the Minister can provide a progress update, either now or in writing, on the review taking place on the nearly 2,000 cases that came under review following last year’s shocking Ockenden report on the appalling failures in maternity care services at Shrewsbury and Telford maternity hospital.
The NHS Resolution 2020-21 annual report specifically refers to its work on safety to support the ambition to halve the rates of stillbirth, neonatal and maternity deaths and neonatal brain injuries occurring during or soon after birth by 2025, with an interim ambition of a 20% reduction in these rates by the end of last year. In written evidence to the health committee, the Royal College of Obstetricians and Gynaecologists and the Royal College of Medicine warn that spending on NHS litigation continues to constitute a threat to the sustainability of the NHS.
Maternity cases account for 11% of the total number of all clinical negligence claims but for 59% of the total costs in litigation by value. Overall maternity claims are valued at approximately £4.2 billion, a figure that has almost doubled since 2016-17. NHS Resolution also reports a continuing increase in claims for gynaecology in recent years, of which a large percentage are associated with the vaginal mesh scandal highlighted in the report First Do No Harm from the noble Baroness, Lady Cumberlege, referred to by other noble Lords. This issue will also be debated under the Health and Care Bill, particularly the key issue of redress systems for the victims of harm.
From today’s debate, it is clear that government action and the conclusion of the health committee’s inquiry into NHS litigation costs are urgently awaited, and that we still have a long way to go to establish and embed the joined-up patient safety learning culture across the NHS that is so urgently needed. I look forward to the Minister’s response.
Baroness Chisholm of Owlpen (Con)
I thank my noble and learned friend for bringing this debate to the House, and I thank other noble Lords for their contributions. If my noble friend Lord Kirkhope felt slightly daunted by the group around him, I do not know how he thinks I feel—but I will do my best. I am pleased that the Health and Social Care Committee in the other place is conducting an inquiry into this important issue.
There were so many good and interesting questions put forward during this debate that I am going to start by answering them. If that takes up my full 12 minutes then, frankly, I would rather have the questions than the speech.
My noble and learned friend Lord Mackay asked what had been done to improve the response to harm by the NHS before patients reach the point of making a claim. We know that poor handling when an incident or complaint occurs, or in the aftermath, can be distressing for patients and families at a time when they are vulnerable. The Government have introduced a number of measures to support the NHS in order to improve the response to patients who are harmed, including establishing the statutory duty of candour, involving patients in investigations, following an incident implementation process to investigate and learn from incidents—for example, the HSIB—and establishing a new Patient Safety Commissioner.
My noble friend Lord Lansley talked about the drive to improvement. We need to focus on the culture within NHS organisations, which is a crucial factor in determining how welcoming we are and open to concerns, complaints and feedback. NHS organisations are there to help, and there must be an effective complaints system that can provide an appropriate remedy for a person making a complaint and enable an organisation subject to a complaint to learn from its mistakes in order to improve future services. There is an NHS-wide complaints system in place in which patients have a legal right to complain, to have that acknowledged within three days and properly investigated and to receive a timely response. If complainants remain unsatisfied, they can raise their complaint with the office of the Parliamentary and Health Service Ombudsman, which will review the complaint and come to a final decision.
However, we need to learn from claims to make sure that harms are not repeated, as my noble friend Lord Lansley talked about. Learning is best undertaken at source and as close in time to the event as possible, which I think the noble Baroness, Lady Brinton, also mentioned. Our well-established safety and reporting system for all incidents facilitates rapid feedback. This means that claims are not the main source of learning for the NHS, because there are long time lags between incidents and claims, and the NHS wants to learn from all incidents, not only those where patients decide to bring a legal claim.
However, NHS Resolution is committed to helping the NHS learn from claims and is working directly with trusts to share learning and best practice across the NHS to drive safety improvement. This will help to minimise the potential for clinical errors that could lead to harm and possible future claims. An effective complaints system can provide an appropriate remedy for the person making the complaint and enable an organisation to learn from its mistakes and improve future services. There is an NHS-wide complaints system in place.
The noble and learned Lord, Lord Mackay, talked about specific clinical negligence litigation reform options. This is a long-standing, complex and sensitive issue. There are a number of drivers of cost, and for this reason we believe there is no single or quick fix. The Government are committed to addressing this issue. To understand the drivers of costs and explore ways forward, in the 2020 spending review the Government committed to publishing a consultation. The department has no plans to implement the NHS Redress Act 2006, and several of the benefits it may have delivered are being implemented through other initiatives.
My noble friend Lord Kirkhope of Harrogate talked about “delay, deny and defend” and the NHS culture which simply increases costs. NHSR aims to resolve claims promptly and fairly and for the right amount. It also has a responsibility to defend unjustified claims to secure NHS resources. Most claims are settled without court proceedings and very few go to trial. NHSR is focused on early resolution of claims where possible, including use of mediation to settle claims and resolving claims before they enter the formal litigation process. In 2020-21, 74.7% of settled claims were resolved without formal court proceedings.
My noble friend Lord Kirkhope also mentioned punitive damages. I understand punitive damages are not usually awarded in this country. Our safety systems provide for prompt learning where mistakes may have occurred. My noble friend also mentioned claimant legal costs, which frequently exceed damages for lower-value claims. That is the reason why government have proposed fixed recoverable costs, and to consider the Civil Justice Council proposals. We will consult on the next steps shortly.
I agree with my noble friend Lord Lansley that the Clinical Negligence Scheme for Trusts produces useful incentives for better safety. The NHS maternity incentive scheme has produced important improvements in safety across the country’s maternity services. My noble friend also talked about the NHS Redress Act. The maternity investigations undertaken by HSIB replace the local investigations that trusts are required to undertake for all serious incidents and identify the contributory factors that have led to harm, or the potential for harm, to patients. The Healthcare Safety Investigation Branch works closely with families to identify what went wrong and produces a final report, which it shares with the family and the trust, highlighting safety recommendations with the intention of preventing future similar events.
The department expects trusts to implement these recommendations in addition to the investigations. Trusts receive ongoing support, training and professional development in patient and family engagement through the programme. This includes how healthcare professionals can work sensitively and effectively with patients and families, and enhanced bereavement training. As of 30 September 2021, the Healthcare Safety Investigation Branch has received 3,475 referrals, of which 2,303 have progressed to full investigations that will soon be completed.
The noble Baroness, Lady Brinton, talked about an individual case. I empathise with the person involved. Obviously, I cannot comment on individual cases, but I want to reassure noble Lords that we are working to tackle these issues. We are doing so by improving safety, for example by publishing the first ever patient safety strategy to create a safety and learning culture in the NHS. We are improving maternity safety, for example by investing an additional £95 million in maternity services to support recruitment. We are improving response to harm, for example by working with the ombudsman on standards for complaints handling. We are improving learning from things that go wrong, for example through the legislative changes that we are making to the HSIB, so that investigations help organisations learn. We are improving learning from claims, for example through the safety insight work of NHS Resolution.
We are enabling healthcare staff to speak up without fear—this is so important, because I think it has been the culture throughout the NHS for many years, and certainly when I was a nurse it is what I found over and again in the various hospitals that I worked in. It is important that staff should be able to speak up. We will establish speak-up guardians in every trust, supported by the national guardian. Improving early resolution of legal claims through mediation is also extremely important.
The noble Baroness, Lady Brinton, also talked about the patient safety commissioner, which of course we talked about today in Oral Questions. I think I have nothing to add to that; anybody who was present for Oral Questions will know what I said. A campaign to fill the commissioner position is due to be launched later this year, in line with the public appointments process, and we expect to appoint the commissioner in the first half of 2022.
The noble Baroness, Lady Wheeler, talked about the importance of the Ockenden report. We are investing £95.6 million in maternity services to target the three overarching themes identified in the first Ockenden report: workforce numbers, training and development programmes to support culture and leadership, and strengthening board assurance and surveillance to identify issues earlier. Significant safety measures have been introduced in the past decade, including the NHS patient safety strategy.
The noble Baroness also talked about midwives’ evidence that improving patient safety and reducing avoidable harm is the best way to reduce litigation costs. Of course, that is true, and we must carry on doing that.
I have only two minutes left—there is never long enough, I am afraid. We recognise the importance of listening to patients. As I have said, we are appointing a new patient safety commissioner to promote the safety of patients and to champion their views, particularly in relation to medicines and medical devices, and we are looking to build on successes through the health and safety Bill. We want to establish an arm’s-length body to continue the much-lauded work of the Healthcare Safety Investigation Branch.
We announced £9.4 million of funding in the 2020 spending review to improve maternity services, including pilots to reduce the incidence of birth-related brain injuries. Some £95 million of funding will also boost workforce numbers and support culture and leadership in maternity.
The department is working intensively with the Ministry of Justice, other government departments and NHS Resolution on this complex and sensitive issue. In the 2020 spending review, the Government committed to publishing a consultation on it. While work is ongoing, I am not able to elaborate further, but we look forward to seeing the result.
I extend my thanks again to my noble and learned friend and to everybody else who contributed to this debate. If I have not answered all the questions, I will of course write to noble Lords, but I thank them for airing this debate today.