National Health Service: Liability Costs

Baroness Brinton Excerpts

Thursday 2nd December 2021 Grand Committee

[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.