National Health Service: Liability Costs

Lord Keen of Elie Excerpts

Thursday 2nd December 2021 Grand Committee

[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.