NAO clinical negligence report: A one-sided picture

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Qamar Anwar argues that the National Audit Office’s report on clinical negligence costs has little credibility

The recent publication of the National Audit Office’s (NAO) Managing the costs of clinical negligence in trusts report, predictably and misleadingly put the focus for all of the NHS’s ills on claimant lawyers, yet again.

Publication of the report had been eagerly anticipated, coming some 16 years since it last examined clinical negligence claims in the NHS. However, for many clinical negligence lawyers it was nothing more than a damp squib.

One of the report’s biggest failures was to make any real assessment of the way in which NHS Resolution (previously the NHSLA) is performing. The report simply said that it was “not clear whether or not the time that NHS Resolution takes to resolve cases is optimal”. It added: “There are no data against which NHS Resolution’s performance can be benchmarked and the optimum time will vary on a case-by-case basis. Resolving clinical negligence claims is adversarial in nature, leading to differing views on whether the time taken to resolve cases is optimal.”

Performance of NHS Resolution can and should have been benchmarked in line with insurers and claims handlers. By failing to do this, the report has little credibility. Yet, this missing and crucial information, was overlooked by large swathes of the media, resulting in the predictable ‘ambulance-chasing’ headlines. You can’t blame one segment of the claims process without examining all of the other parts.

Clinical negligence lawyers everywhere know that delays caused by trusts and NHS Resolution can be unrelenting and are hugely distressing to clients. Often legal bills are massively increased as a result of the NHS’s failure to admit fault at an early stage and the way it conducts cases.

Yet, lawyers’ fees remain an easy target, but the reality is that fees are already tightly controlled, capped and limited due to recent reforms; they have to be “reasonable and proportionate” before they are paid and the courts, rightly, already hold the power to reduce any bill found to be excessive.

The report also failed to make any allowance for the thousands of pre-LASPO cases that have not yet concluded, which will inevitably skew the NAO data.

Lord Justice Jackson’s July report on fixed recoverable costs has recommended “a bespoke process for clinical negligence cases up to £25,000”. Implementation of such a scheme will also lead to significant costs savings.

Anecdotally, the NAO suggests that people make claims because they are dissatisfied with the response received from NHS trusts following an incident.  This is certainly reflective of the conversations we have. We’re also aware that many firms actually support claimants through the NHS complaints process for free, with a claim only being made if the process doesn’t provide the satisfaction being sought. Tackling this issue at source would inevitably have an immense impact on claim numbers but there’s no reference to improving this in the report.

Finally, there’s the longer-term issue around how the Civil Liability Bill, which proposes to cap damages for injured innocent road traffic victims, will push greater numbers of people on to the NHS, because they won’t be able to fund their rehabilitation. The NAO rightly points out that more NHS patients will inevitably lead to more clinical negligence claims. It’s a vicious circle which this report has done nothing to tackle.

Qamar Anwar is managing director of First4Lawyers

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