National Health Service: Liability Costs

Baroness Wheeler Excerpts

Thursday 2nd December 2021 Grand Committee

[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.