No-Fault Compensation For Clinical Negligence – What Impact Will It Have On Patient Safety?

Ministers are working on a total overhaul of what they say is an ‘outdated’ system of clinical negligence compensation within the NHS. In this article, Matthew Olner, Partner in our expert Medical Negligence team, considers the impact the proposed no-fault compensation system could have on patient safety.

As an ex NHS Nurse, I am well aware of the incredible work done in the NHS day in and day out. Perhaps that has never been more obvious than over this last year. But in such a large organisation it is inevitable that things sometimes go wrong and avoidable mistakes occur causing harm – sometimes very serious harm – to patients. That’s where we come in. Two principles underpin the ethos of specialist clinical negligence solicitors – access to justice and patient safety and these two concepts go hand in hand.

Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in 2013, which introduced funding cuts to legal aid, meaning fewer people can now access legal advice, and the removal of legal aid for all but a very small number of clinical negligence cases, there has been a significant rise in the number of non-specialist firms moving into clinical negligence work.

Before LASPO, firms were only allowed to deal with legally aided clinical negligence cases if they had specialist panel membership, for example with the Law Society. With the removal of this quality standard, other non-specialist firms moved in. This has led, in turn, to a rise in unmeritorious cases being pursued, which has a knock-on effect in terms of costs, delays and lack of proper access to justice.

Clinical negligence specialists screen out the majority of enquiries at a very early stage – thus ensuring the NHS is not clogged up with cases that have no realistic prospect of success. It is also worth bearing in mind that, at present, and for a long time now, the number of untoward incidents happening in the NHS far exceeds the number of claims being pursued.

New vs old

There is an obvious temptation on the Government side to try and introduce a new system that is going to drastically reduce the costs of clinical negligence claims for the NHS and there have been talks on introducing some form of a no-fault compensation scheme.

This will not work. What will need to be proved in order for compensation to be paid? What will happen in fatal and infant cases? What will happen in catastrophic injury cases? What will happen when there has been an attempted cover-up that only comes to light after careful, forensic – and independent – legal investigation?

Without a properly trained lawyer on their side, families and patients will end up having to rely on what the NHS tells them. If specialist lawyers are left out of any new system that is introduced, while from the Government’s perspective the whole thing becomes easier and cheaper to manage, it would come at the expense of access to justice and patient safety.

Baroness Cumberlege’s recent report – First Do No Harm – shows clearly what can happen when people are not listened to. Furthermore, the Morecambe Bay Investigation Report – which showed repeated failures by the Trust to improve the care received and address historic issues, leading to an increase in deaths and stillbirths at the hospital – also highlights the importance of people being able to access specialist lawyers to act as their voice.

It is critical to patient safety that failings in health settings are properly investigated by specialists without fear or favour, and that the lessons from successful claims are learned across the sector.

The tort talk

There is also talk of reforming the tort system, a means of reimbursing the victims of injury, so that successful claimants are unable to recover compensation that would at least try to put them back in the situation they were in before the injury. This has long been a goal of the insurance sector and would have the effect of instantly and significantly, making the sector a great deal richer. Changing this would fundamentally alter a core tenet of civil justice in this country.

Would that just be for clinical negligence claimants? Would it also apply to commercial disputes? If not, why not? The same principles of justice must apply to all.

It is vitally important to both patient safety and access to justice that there remains a body of specialist claimant clinical negligence solicitors across the country that anyone can access when something has gone wrong in a medical setting.

It must be a specialist with the requisite set of skills to be able to investigate and unearth evidence in the most technically complex and challenging of situations – including, sadly, fatal cases.

For example, recently, a member of our team represented the family of a baby who had died at a local hospital at an inquest. The trust was fully legally represented at the inquest. Without specialist legal representation, the family would have been at a very significant disadvantage and would have found it much harder to get the truth as to what happened.

Many on the claimant side – including Action against Medical Accidents – consider that the obvious and most cost-effective way forward from here would be to reinstate legal aid for all clinical negligence cases.