National Health Service: Liability Costs

Lord Kirkhope of Harrogate Excerpts

Thursday 2nd December 2021 Grand Committee

[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.