Clinical Negligence - Question

– in the House of Lords at 2:37 pm on 3rd March 2020.

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Photo of Lord Storey Lord Storey Liberal Democrat Lords Spokesperson (Education) 2:37 pm, 3rd March 2020

To ask Her Majesty’s Government what assessment they have made of the costs of clinical negligence.

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

My Lords, when people are harmed under NHS care, the impact on their lives and families can be devastating. We have a clear duty to shoulder that responsibility. However, the costs of clinical negligence continue to rise every year at an unsustainable rate, eating into resources that should be available for front-line care. This is despite our substantial safety programmes. We are working across government on solutions to address this and will bring forward a publication in due course.

Photo of Lord Storey Lord Storey Liberal Democrat Lords Spokesperson (Education)

My Lords, I am grateful for the Minister’s very helpful reply. He will be aware that criminal negligence claims are running at about £1.8 billion and forecast in the next few years to go to £3 billion. Is the Minister concerned that, by paying NHS defence legal costs regardless of the outcome of the claim, the Government are creating perverse incentives that reward “deny, defend, delay” behaviours by lawyers?

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

My Lords, the arrangements for clinical negligence payments are currently under review. The National Audit Office made it clear that this should be the focus of a substantial government review programme. We view the current arrangements as completely unsatisfactory, and that review will be published shortly along the terms that the noble Lord described.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, will the Minister consider whether Section 2(4) of the 1948 Act should continue, as it tends to swell these claims for damages? Is there any procedure followed when a particular claim is accepted to see whether the same accident is repeated again, and, if so, what should be done to stop it?

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

I can confirm that, at this stage, there is a wide review going on. The department is looking at a wide range of options, but a repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948 is not planned for the moment. He makes a profound and important point about the importance of better understanding when repeated errors are made. Patient safety has been put at the centre of the NHS’s priorities for 10 years. Big improvements have been made, but more can be made in the future. We will be bringing the HSSIB Bill to this House later in the Session.

Photo of Lord Watts Lord Watts Labour

My Lords, many of the negligence cases that are brought forward are down to the shortage of staff within hospitals. If there is a shortage of staff, is that the fault of the hospital or of the Government?

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

The noble Lord has teed up a difficult question for me. The truth is that too often, as my noble and learned friend Lord Mackay said, the biggest payments are made in the area of obstetrics, where lessons should and could be learned, regarding not the shortage of staff but the techniques and responsibilities of those who are concerned. The Government are very determined to put right any gaps in practice in that area.

Photo of Lord Faulks Lord Faulks Non-affiliated

My Lords, further to what the noble Lord, Lord Storey, said, in fact the amount that NHS Resolution has reserved for claims is £83 billion. May I suggest to the Minister that, as well as looking at Section 2(4), which I am sorry to say the Government do not seem to be looking at, they review the question of the discount rate, among other things, which has resulted in such huge claims? They should also bear in mind the effect that these claims have on clinical practice. I declare an interest as having practised in this area for the last 30 years.

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

The noble Lord is absolutely right; the total sum of money for claims on the liabilities book is second only to the potential costs of cleaning up our nuclear industry. He is also right that the discount rate is a critically important part of this extremely complex area. It is true that, in 2017, a change to the personal injury discount rate added significantly to damages awards over and above existing drivers. However, that increase was subsequently unwound in August 2019, following the introduction of the Civil Liability Act 2018, and the Government project that it will partially reduce the impact of PIDR in future claims.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, would my noble friend agree that often, and for short-term economic reasons, health authorities have a tendency to settle low-value claims even though the justification for them is sometimes very slight? Does not this practice encourage further claims, very often backed by no-win no-fee agreements?

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

My noble friend is absolutely correct to emphasise the dangers of no-win no-fee arrangements, and in fact trusts have arranged for lawyers representing personal injury practices to leave the premises of trusts for that reason. However, the Government believe that the fixed recoverable costs consultation that ran in 2017 has powerful recommendations for tackling the issue which he describes, and we look forward to acting on the CJC report, published in October 2019.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health)

My Lords, so far, all the questions have related to costs and lawyers and the NHS side. The trauma to patients and to families of extended delays is significant, and some families, particularly in obstetrics cases, take five to 10 years to get a resolution. What will the Government do to speed up the process, keeping patients and their families in mind?

Photo of Lord Bethell Lord Bethell Lord in Waiting (HM Household) (Whip)

The noble Baroness, Lady Brinton, makes exactly the right point. The human cost here is far greater than the financial one. How can it be right that a family that has been through the trauma of some major health disaster then has to stand in court and fight its case against lawyers? This Government are determined to seek to resolve that human cost. This area is extremely complex. Several models have been tried, but we do not have the answers yet. We are working hard to publish a strategy, but I assure the noble Baroness that the human dimension is absolutely uppermost in our considerations.