Response to the consultation on fixed recoverable costs in
lower value clinical negligence cases
Introduction
The Patients Association exists to listen to patients and speak up for change.
For over fifty years we have campaigned for health and social care services
that provide high quality and safe care. We want to see a culture where
patients and their carers are valued as expert partners and recognised as
individuals, where transparency thrives and where patients, their families,
carers and staff are empowered to raise concerns. We believe that the NHS
and social care services should be accountable, and act on feedback in order
to learn and improve.
In our work we advise people on aspects of health and social care that matters
to them, often when things have gone wrong and they need to seek redress.
We have published numerous reports on patient safety, accountability and
redress, including our series of reports on the shortcomings of the
Parliamentary and Health Service Ombudsman.
As an organisation that represents patients, neither we nor our members have
a financial interest in the level of fees available to legal professionals acting in
clinical negligence cases. Our concern is to ensure that redress and
compensation remain available to patients who have been harmed.
This response addressed questions 1, 5 and 6 in the consultation paper.
Question 1: Introducing Fixed Recoverable Costs
Do you agree that Fixed Recoverable Costs for lower value
clinical negligence claims should be introduced on a
mandatory basis?
Yes No
X
If not, what are your objections?
i.
We have multiple objections to these proposals.
ii. By definition, compensation is awarded when people have been harmed
by the NHS. The cases at issue here are not cases where there is doubt
about that – it has been found as fact. The harm involved in cases that
warrant damages at this level can be serious: cases can for instance
include falls resulting in broken bones and even ultimately death, scarring
from pressure sores, or serious burns. While we acknowledge that the cost
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of clinical negligence to the NHS is high, we cannot support any proposal
that could potentially bar people who have suffered harm of this sort from
redress.
iii. We do not believe that this simplistic focus on costs is the right approach
to the problem. The best way to reduce costs arising from clinical
negligence would be to ensure that the NHS admits liability earlier, and
ensure that it learns lessons effectively so that the same mistakes are not
repeated. This would be a twin-pronged approach to reducing costs,
without barring anyone who has suffered harm from claiming
compensation.
iv. The proposed approach would be likely to have the opposite effect. NHS
institutions will feel more willing simply to deny liability, knowing that the
patient will often be financially unable to litigate. When cases do proceed,
obstructive behaviour such as failure to share crucial information will be
incentivised, in the hope of running down the claimant’s financial
resources. A ‘deny and defend’ culture will reassert itself within the NHS,
and learning from mistakes will not take place, because the mistakes will
not be acknowledged. The proposals therefore risk having a serious
adverse effect on patient safety.
v. The threat to patient safety presented by the proposals comes despite the
consultation paper’s unsupported assertion that the proposals would
improve patient care and lesson-learning. We note that question 10 in the
consultation asks for evidence about multiple aspects of the likely impact
of the proposals, but not about its impact on patient safety. We note also
that of the 27 organisations consulted by the Department prior to the
publication of the proposals, only one represents patients. These proposals
are evidently not the slightest bit patient-centred – indeed, they show a
clear disregard for patients and their safety within the NHS.
vi. We oppose the proposals not only in the basis of their likely practical
effects, but also on principle. We do not accept the arguments advanced
to support them, such as the comparison drawn between road traffic
accidents (already subject to fixed recoverable costs) and clinical
negligence: it is not self-evident that an accident involving private citizens
is comparable to an incident in which someone’s safety was compromised
by a publicly funded service that owed that person a duty of care. Nor do
we agree that costs and damages should, a priori, necessarily be in
proportion – the level of harm and level of complexity in a case may be
unavoidably mismatched. In practice, where costs have escalated, it is
often the result of the NHS’s failure to admit its errors in an appropriately
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timely way, and in those circumstances it is right that the NHS should bear
the resultant cost.
vii. We also note that judges can and increasingly do question costs to be
awarded, and that NHS Resolution already challenges costs that appear
unreasonable. Safeguards against unreasonable costs therefore already
exist – the case has not been made that a new and additional set of
safeguards is needed.
viii.
We further object to these proposals because they are ill-timed. Multiple
initiatives are underway to consider issues relating to clinical negligence
costs, and measures to improve redress and reduce costs could well arise
from some or all of them. The review of fixed recoverable costs as a whole
by Jackson LJ is due to report at the end of July. A report on the impact of
the scrapping of legal aid for clinical negligence under the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 is due in April 2018.
The National Audit Office is reviewing the success of DH and NHS
Resolution’s approach to understanding and reducing clinical negligence
costs, and is due to report this summer. So in bringing forward the current
proposals, the Department has very clearly jumped the gun.
ix. Finally, we object to the proposals because of their probable consequences
for market behaviour. Reputable lawyers who specialise in clinical
negligence will likely exit the field. Less scrupulous law firms who are
willing to encourage claims with little merit may come to dominate the
sector – this appears already to have happened to some extent after the
withdrawal of legal aid. This could result in both an increase in claims for
the NHS to deal with, and the exploitation of patients who have already
suffered. The Department should consider carefully the likelihood of
unintended consequences of this sort.
x. Accordingly, we recommend that the Government should not proceed with
these proposals. We have noted that some stakeholders have accepted the
case for fixed recoverable costs in principle, but have recommended a
substantially higher cap. We cannot agree with this approach for the
reasons outlined above, and must observe that the stakeholders concerned
often speak for lawyers rather than patients, with the potential conflicts of
interest this entails. It is also the case that even if a higher cap is
introduced at this stage, it could always be lowered in the future;
compromising on the level of the cap therefore would not amount to
safeguarding patients’ interests over the long term.
Question 5: Expert Witness Costs
Yes
No
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Do you believe that there should be a maximum cap of
£1,200 applied to recoverable expert fees for both
defendant and claimant lawyers
X
Please explain why
i. Capping expert fees at this level would be harmful to patients: such a low
cap would cover the cost of at most one report, and in some cases not
even that. Expert witnesses will be likely to drop out of the market and
focus on their own clinical practices in preference to lowering their prices.
This will leave many patients unable to litigate at all – without an expert
report, they will simply be unable to make their case.
Question 6: Single Joint Expert
Expert fees could be reduced and the parties assisted in
establishing an agreed position on liability by the
instruction of single joint experts on breach of duty,
causation, condition and prognosis or all three. Should
there be a presumption of a single joint expert and, if so,
how would this operate?
Yes
No
X
Please explain why
i. We have two serious reservations about any presumption of a single joint
expert. Firstly, as the only source of expert evidence, the single expert will
effectively end up deciding the outcome – that is not what witnesses are
for. Secondly, it may often be hard to a complainant to haveconfidence in
an expert who acts for them jointly with the NHS body they are taking
action against. It is important that patients should have access to their
own independent expert evidence.
For more information
John Kell
Head of Policy
Email: [email protected]
Telephone: 020 8323 9111
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Address: PO Box 935, Harrow, Middlesex, HA1 3YJ
Registered Charity Number: 1006733
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