How should clinical negligence cases be managed in the future?

How to manage clinical negligence cases for the benefit of the affected patient, but recognising the increasing burden on the taxpayer, is a challenging balancing act for the Government. Head of Clinical Negligence Peter Livingstone looks at the issues.

The House of Commons Health & Social Care Committee, led by the former Health Secretary Jeremy Hunt, is focusing its attention on the current system. Their focus is on:

• Having the NHS provide rehabilitation, rather than allowing damages to be claimed for private healthcare;
• Moving away from the ‘blame culture’;
• Providing the right support quickly.

At the moment, the complaint process can provide answers, but payments of compensation are generally triggered only by the threat of litigation.

Such claims can generate high legal fees. They can also involve claims for damages to cover the cost of private healthcare even if the claimant in fact uses the NHS.

And with a battle comes the concept of blame. The Committee recognises that focusing on blame can obstruct learning opportunities which might lead to improvements in medical practices.

Compensation does have a place for affected patients. The Committee wonders though how best to provide victims of clinical negligence with the right support after a medical injury, but without a protracted legal battle.

Though we in the UK are used to being entitled to bring court claims, that does not have to be the case. Governments can forbid it. In New Zealand, for example, victims of road traffic accidents are not allowed to sue, but must instead take part in the nation’s fixed compensation scheme.

The concept of redress for clinical negligence is not a new idea. A limited system of redress was implemented by the Welsh health service in April 2011.

Hospital trusts in Wales evaluate the position at an early stage to establish if there is a right to compensation. That prevents a defensive tone becoming embedded. It also allows learning points to be discovered early and to be acted upon.

In the Welsh scheme, if liability is identified the affected patient is informed and can then receive advice from an independent lawyer. A battle is often avoided and the process is generally much quicker.

It is easy for it to identify and implement treatment and rehabilitation at an early stage.

The scheme in Wales has been in place for 10 years now. The scheme seems to provide the Committee with an important model to consider.

This is not the first time that an overhaul of the system has been mooted, but with claims set to increase, there does appear to be a great deal to be gained in finding a better way of providing compensation, still keeping patients’ welfare at the centre of the process.

Lawyers will always have a place within a redress system, providing a safeguard of legal advice.

At Battens, we aim to provide legal advice in an efficient manner within the current system, and we will also respond positively if and when the system is altered. If you, or a loved one, have concerns about healthcare you have received, please get in contact.

Email: peter.livingstone@battens.co.uk or call 01935 846235