National Health Service: Liability Costs

Baroness Chisholm of Owlpen Excerpts

Thursday 2nd December 2021 Grand Committee

[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.