UK government expects to pay £26.6bn for clinical negligence claims against NHS

By on 01/05/2015
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A patient safety group has sounded a warning after it emerged that the UK government expects to pay out £26.6bn for clinical negligence claims against the National Health Service (NHS), which last year faced an “unprecedented level of new claims”.

The government estimates it will have to spend this cash sum on clinical negligence cases, which are more than 50% likely to be successful, the Whole of Government Accounts – an assessment of UK public sector’s financial position in 2013-14 – state.

The estimate represents a 69% increase compared to 2009-10 and is “due to the number of new claims being at an unprecedented level of 11,945,” the accounts say.

The NHS Litigation Authority (NHS LA), which deals with compensation claims against the NHS, explains in its accounts for 2013-14 that the increase followed the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) coming into effect on 1 April 2013.

Prior to LASPO, which “reformed the funding arrangements for civil litigation, […] we saw significant marketing campaigns by claimant solicitors to ensure claimants signed up to pre-LASPO no-win, no-fee agreements, which still enable claimant solicitors to charge a success fee on their costs”, meaning that the vast majority of claims reported throughout the year have been conducted under the pre-LASPO arrangements, the document says.

However, 2013 was not the only year in which the number of new claims against the NHS went up. It was part of an overall trend: The number of claims increased steadily from 6,652 in 2009-10 to 11,945 in 2013-14 – representing an 80% rise.

Katherine Murphy, chief executive of the Patients Association (PA), whose president Sir Robert Francis QC led a public inquiry into a the Mid Staffordshire hospital scandal which involved the death of hundreds of patients due to poor care, said: “It is alarming and of great concern that such vast sums of money are being put aside to pay for medical negligence claims.

“At a time when the NHS is under considerable financial strain, all of our resources need to be channeled towards providing safe, dignified and effective care for patients.

“We know from the many calls to our national helpline that mistakes and incidents of negligence are sadly still plaguing the NHS.”


Looking for explanations

The £26.6bn figure is made up of £26.1bn accounting for the English health service and £0.5bn for the devolved administrations of Scotland, Wales and Northern Ireland.

The Department of Health said it could not comment due to restrictions applying to civil servants in the run-up to the general election on 7 May.

Sir David Nicholson, former chief executive of NHS England, told Global Government Forum that he could not understand why claims had increased so dramatically, but added that the government recently launched a number of campaigns to increase patient safety “because it became clear – particularly to the politicians – that this was not sustainable.”

Mortality rates were also going down, he added, and the “healthcare system in general is safer now” than is used to be.

A spokesperson for the NHS LA said: “£26.1bn is an estimated provisions figure for future expenditure on negligence claims  – it will not be spent in this or any single financial year.

“£10.5bn is for unresolved claims brought against trusts  as well as claims resolved as periodic payment orders where, to meet ongoing care needs, the NHS LA makes regular payments for the rest of a claimants life.

“The remaining £15.6bn is also an estimate of the value of claims which may or may not be brought in the future.”


Addressing an ‘unprecedented increase’

The NHS LA said in its accounts that the unprecedented number of new clinical negligence claims in 2013-14 “has been challenging for the NHS, our teams and our legal panel.”

It hired 50 more members to its indemnity scheme to “effectively deal with an unprecedented increase in claims”, the accounts say, adding that “for the first time, we received more than 1,000 claims per month in six months of the year.”

In 2013-14, the NHS LA paid out £1.2bn for clinical negligence cases, the document states, which also says that “maternity claims represent the highest value (35%) and third highest number (11%) of clinical negligence claims reported to us.”

It says that “the value of maternity claims can be very high – sometimes more than £6m as the amount paid is for ongoing care, accommodation and specialist equipment needs.”


A global perspective

Nicholson said that while £26.6bn was a “significant” sum of money, it was difficult to draw international comparisons due to the unusual nature of the British healthcare system: “You can’t compare it [with other countries] because you wouldn’t have the information. In this country, most healthcare is delivered by the public sector, which is very unusual. Most other countries have a very different system.”

Rob Whiteman, chief executive of the Chartered Institute of Public Finance and Accountancy – the professional body for accountants in public finance – echoed his view. He said that “in most other countries, such as in North America or the EU, where health insurance may be subsidised but mainly falls outside the public sector, those liabilities would be on a number of private health insurers’ balance sheets” – rather than one collective government balance sheet.

And Sukhmeet Panesar, manager at EY’s healthcare advisory practice, added that “private [insurance] companies may be sensitive about sharing this information.”

“So in a sense,” Nicholson added, the British system in this case is “much more open and transparent”.


The power of saying ‘sorry’

However, Panesar, who previously worked as global programme manager at the World Health Organization and senior policy fellow at NHS England where his focus was patient safety, warned that “more needs to be done to increase patient safety and to foster a culture of openness and transparency.”

He said that “patients are more likely to forgive medical errors when the clinician apologises and takes the time to discuss the error(s) in a timely and thoughtful fashion.”

He said that a report published by the NHS National Patient Safety Agency in November 2009, cites examples of hospitals abroad, which saw the number of clinical negligence cases brought against them reduce significantly after they adopted a so-called open disclosure policy.

“Saying ‘sorry’ is a very powerful thing,” Panesar said, “but most people don’t realise that it does not mean that you are admitting liability.”

The PA’s Murphy added that “for most patients and their families, compensation is not the driving force behind making a complaint or raising a concern. People who raise concerns are often vulnerable, bereaved and simply want independent and honest investigations. “They want to establish what happened, the facts – the why and the how- and what will be done to prevent the same thing happening to anyone else.”

The NHS has endured the tightest funding squeeze in several decades under this coalition government which looks set to be shaken up after next week’s election. It has had to deal with the coalition government’s patchy health reforms, a £20bn savings squeeze from a system that faces increasing demand, the Mid-Staffs hospital scandal and quality failings elsewhere.

About Winnie Agbonlahor

Winnie is news editor of Global Government Forum. She previously reported for Civil Service World - the trade magazine for senior UK government officials. Originally from Germany, Winnie first came to the UK in 2006 to study a BA in Journalism & Russian at the University of Sheffield. She is bilingual in English and German, and, after spending an academic year abroad in Russia and reporting for the Moscow Times, Winnie also speaks Russian fluently.

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