Clinical Negligence: Mainly Claimant Overview
Dr Jock Mackenzie, Anthony Gold
It has been an eventful year in clinical negligence, involving consultations, politics, a key follow-up report and other delayed reports. Nevertheless, for all that has been happening, much still remains outstanding and the longer term landscape is yet to be fully shaped.
In October 2016, the government announced a package of measures intended to improve maternity services in the NHS, including a consultation on a voluntary Rapid Resolution and Redress scheme (RRR) for severe birth injuries, the primary aims being to reduce the number of such injuries in the NHS and to improve the experiences of families and clinicians when harm occurs. It is a laudable concept, but such a scheme will not be without its difficulties. The consultation closed on 26 May 2017 and the report is still awaited.
Then, in December, the National Audit Office (NAO), Parliament’s spending watchdog, proposed to investigate the NHS Litigation Authority’s (NHS LA) defence of medical claims, given rising costs. Claimants have long argued that such costs were, at least in large part, because the NHS LA was not settling indefensible claims sufficiently early. The NAO’s report was originally due for publication in summer 2017 but was delayed because of the general election; at the time of writing it has yet to be published, but it is thought to be due out in the autumn.
In the same month as the NAO’s announcement the NHS LA revealed its new mediation service, following the apparent success of a pilot scheme, with two-year contracts having been awarded to three dispute resolution organisations. As the service is still in its relative infancy the take-up and impact of such a scheme remains to be seen, but the NHS LA reported encouraging early signs.
The following month, January 2017, saw the Department of Health introduce its consultation on Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims for claims with damages up to £25,000. This consultation closed on 2 May 2017, notably before the NAO’s report on the NHS LA had been published, and the report is still due.
In a move that then took both sides of the clinical negligence divide (as well as the wider personal injury industry) rather by surprise, the (then) Lord Chancellor in February 2017 reduced the ‘Personal Injury Discount Rate’ from 2.5% to -0.75%. This significant change, which advantaged claimants and which stretched considerably beyond just clinical negligence, resulted in the Ministry of Justice publishing a consultation to review the framework under which the rate is set; this closed on 11 May 2017. Needless to say, there has been vociferous lobbying from defendants ever since the rate change and the outcome of the consultation remains eagerly awaited.
On 3 April 2017, the NHS LA relaunched under the new operating name of NHS Resolution (NHSR), bringing together under that umbrella name its three main functions: NHS LA, National Clinical Assessment Services (NCAS) and Family Health Services Appeal Unit (FHSAU). The new name is intended to reflect NHSR’s purpose of ‘delivering fair resolution and learning from harm’, with their strategy being more focused than before on prevention, learning and early intervention to address the rising costs of harm in the NHS. NHSR considers this as ‘evolution rather than revolution’. This sounds promising, although cynics might be forgiven for thinking the inception of NHSR before publication of the NAO findings was precipitated by the latter’s proposed independent investigation into the NHS LA.
Of course, the general election in early June 2017, in combination with Brexit, has resulted in a rather complex political backdrop against which the various consultations and reports are to be published and change implemented. It remains to be seen what appetite (and time) Parliament is going to have.
The newly-named NHSR published its first annual report in July 2017. The number of claims received fell for the third year in a row (by 2.5%, from 10,965 to 10,686), although claims numbers increased in the £50,001 to £100,000 bracket. Damages paid out also increased (by 14%, from £950.4 million to £1,083.0 million), although this latter figure includes claims notified in previous years. The total proportion of payments (damages, claimant costs and defendant costs), though, has not materially changed (64%, 29% and 7% respectively). As with its predecessor’s report, the point is again made that legal costs that are ‘disproportionate’ to damages are still a problem in lower value clinical negligence claims, although the extent of disproportionality has in fact reduced slightly for the bracket of claims with damages of under £10,001. There is, however, no discussion about the complexity of claims irrespective of monetary value.
Throughout the year, Lord Justice Jackson conducted roadshows with interested parties around the country as part of his consultation into Fixed Recoverable Costs (FRC) and then published his highly anticipated report on 31 July. His conclusion: in brief, that FRC should apply to all claims worth up to £25,000 (fast-track) and, above the fast-track, to cases valued up to £100,000 which can be tried in 3 days or less and with no more than two experts giving oral evidence on each side (intermediate track); however, with respect to clinical negligence specifically, cases worth up to £25,000 should have their own fixed costs regime, put together by a working party which involves all stakeholders. For claimants, this was an important and welcome step back from the potential FRC level of £250,000 that had been mooted initially.
The year has, however, not been all about consultations, politics and reports; clinical negligence cases continue to keep the courts busy with substantive issues, culminating in some important recent decisions. The impact of Montgomery on consent issues continues to be refined - there is no free-standing claim for damages for loss of personal autonomy in an absence of informed consent (Shaw v Kovac  EWCA Civ 1028) and it is increasingly apparent that with a greater right of patient autonomy comes a greater need for patient responsibility (Darnley v Croydon  EWCA Civ 151). Medical experts continue to remain in focus, in particular the importance of experts adhering to their responsibilities and duties (EXP v Barker  EWCA Civ 63) and Harris v Johnston  EWHC 3193 (QB)). Other issues that were revisited included the standard of care of junior doctors in A&E (FB v Princess Alexandra Hospital NHS Trust  EWCA Civ 334) and psychiatric injury claims by secondary victims (RE and Others v Calderdale and Huddersfield NHS Foundation Trust  EWHC 824).
It is apparent that there continues to be little or no let-up in clinical errors and clinical negligence cases and, accordingly, it is understandable there remains a strong government drive to rein in, through a variety of means, rising legal costs. However, as claimant representatives have been stating for many years, the need for the NHS to learn from its mistakes and for claims to be resolved early remains at the forefront of controlling the long term costs of clinical negligence. So, let us hope that NHS Resolution lives up to its new name and its website’s assertion ‘Advise / Resolve / Learn’.