National Health Service: Liability Costs

Lord Mackay of Clashfern Excerpts

Thursday 2nd December 2021 Grand Committee

Asked by

[Lord Mackay of Clashfern]

To ask Her Majesty’s Government whether the liability costs to the National Health Service in England that relate to negligence can be reduced; and, if so, how.

[Lord Mackay of Clashfern (Con)]

My Lords, I intend to read what I have said. It is very unusual for me to do so and I hope that I will read it reasonably well. I do it because I sent a copy of what I am going to say to the Minister, as I am going to make some suggestions and I thought it only sensible that she should know what they were because trying to answer them immediately might be slightly more difficult, so it is in the hope that it will be practical that I do this.

My first appearance here as a junior advocate was in a clinical negligence case. Your Lordships will understand that that was not yesterday or the day before, and I have done a number of these cases in a more senior role since. I should say, in order to deal with the idea of any sort of specialty, that I am an honorary fellow of three royal colleges—particularly, in this area, the Royal College of Obstetricians and Gynaecologists.

In the last year the cost to the NHS of clinical negligence was £2,209.3 million, of which claimant legal costs were £448.1 million. The cost to the NHS of its own service is shown as less, but the two are not properly comparable because the NHS costs do not include the staff costs and that kind of thing. That was confirmed in a Written Answer some time ago. It is sometimes suggested that this is due to the existence of conditional fees—some doctors seem to think that conditional fees have caused this—but I point out that not a penny goes out on that basis unless fault is agreed or established on the part of the NHS.

I ask the Minister to say whether, when a fault is established or agreed against the NHS, the whole service is warned to avoid repeating it. It seems to me that that would be one of the best ways of cutting down examples of negligence. Once something has happened, it is important that everyone is warned against it happening again. These things are apt to be quite common.

One of the first cases that I did involved the death of a person in anaesthesia. The reason was that the machine that was used had two levers, one for shutting out the oxygen and the other being set to allow the oxygen in. The anaesthesiologist in charge of dealing with this child did not notice that the lever was down and the oxygen was shut off. They could not understand what was wrong and sadly the child died before they discovered it. If that happens, it should be broadcast right across the area of the NHS that is using that kind of facility so that it can be stopped immediately. That is such an obvious thing to happen. What arrangements are there in the NHS for spreading the news of a fault in order that it be not repeated?

On damages, I strongly advocate the repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948. In my experience, two principal factors increase damages. One is that the fault occurred at or near birth, so the damages take account of the whole of life, which is why those damages are especially high. The second is that the loss of earnings resulting from the fault is large. Generally, the NHS treats all patients equally and I suggest that it would be appropriate to cap the rate at which loss of earnings can be recovered by perhaps a multiple of the current average wage. That could be made public and any patient undergoing treatment whose income was higher than the cap could, I suggest, make an insurance arrangement accordingly.

In the case where the liability of the NHS is established, there is scope for excessive claimants’ costs. I suggest that a table of allowable costs linked to the amount of damages could be used to mitigate this with a provision—I can see that there are cases requiring this—that the court should have a power in a particular case involving special difficulty not provided for in the table to award a larger figure.

I should add that over my career I have been involved in many discussions of alternatives to the judicial system: administrative systems, systems that make it automatic and so on. I have never found, or been involved in, a decision to accept anything of that sort as satisfactory. I honestly believe that the judicial system is the most efficient and fair-minded system that you can have.

One of the great difficulties is that inevitably there is a distinction between what is caused by fault and what is natural. What is caused by fault will be subject to compensation and what is natural will obviously not. Often the investigation into the cause is the centre of the investigation that normally takes place. These are humble suggestions made with a view to trying to help the NHS to devote the money that it gets to front-line services rather than paying out to people who have been harmed, more or less, in their course of treatment by the NHS.