By Legal Futures Associate ARAG
It is now more than six months since I sat at a table in the Law Society with representatives of all sides of the clinical negligence debate, discussing the state of the sector and our predictions for the future.
While Boris Johnson’s position was far from certain at the time, just days after the publication of the official report on Downing Street parties, none of us could have predicted what has happened since. Now, two Prime Ministers later, Dominic Raab is back at the Ministry of Justice, having given up his desk to Brandon Lewis for just seven weeks.
The Department of Health and Social Care has seen even greater turnover at the top, with four changes of Secretary of State since the start of the pandemic, three of them in the past six months.
I’m often frustrated that the politicians trying to reform the clinical negligence compensation system don’t seem to understand it that deeply, but perhaps we should lower our expectations given that the average tenure of a Justice Secretary since 2015 is barely a year – either that or we accept that SCIL’s Government education programme simply goes on.
As well as journalists from the Law Society Gazette, and both claimant and defendant lawyers, May’s roundtable participants represented medical experts, after-the-event insurance providers and NHS Resolution, but there was broad consensus around many of the issues we discussed.
It is glaring that some of these key parts of the existing clinical negligence system are largely disregarded in the current proposals for fixed recoverable costs. Legal expenses insurance, that plays such a vital role in providing access to justice for those harmed by medical malpractice is curtly dispensed with and given no role in the new regime for claims under £25,000 – it is a potentially large flaw in the whole proposal.
The question of medical experts’ fees receives equally inadequate attention. As I pointed out at the roundtable, if a new system doesn’t fix expert witness costs, then it hasn’t fixed costs at all. Furthermore, if the Government isn’t prepared to try and fix that – and it seems that only they possibly have the power to do so – then they should probably leave the whole issue alone on the basis that a partial solution, to the wrong issue, which isn’t in fact a ‘problem’, isn’t a solution at all.
However, perhaps the biggest elephant in what has become quite a crowded room, is the role that claimant solicitors play in filtering out cases without merit or sufficient prospects of success, free of charge to anyone.
The burden of this skilled but largely unappreciated work, and more importantly the costs associated with it, would inevitably fall back on the NHS budget, at huge expense that does not seem to have been accounted for, or even understood, by the legislators.
One issue that is impossible to ignore is the question of patient safety. Reducing the occurrence of clinical mistakes offers the surest way to reduce costs, and the potential savings far exceed anything that any fixed recoverable costs regime might achieve.
The view that patient safety should sit at the heart of any reform is another area of consensus, particularly around the inability of healthcare trusts to learn from each other’s mistakes. This is a cornerstone of The SCIL Scheme, our own proposals for reforming how clinical negligence incidents are handled.
Our scheme offers a realistic alternative to the Government’s fixed recoverable costs proposals, without the obvious pitfalls they entail.
One prediction I did make at that roundtable in May, was that swift progress on the proposal to introduce fixed recoverable costs in lower-value clinical negligence cases was unlikely. If anything, that likelihood seems to have diminished even further. That is probably a good thing because the whole issue requires more political courage vis-à-vis NHS structural reform, and a greater understanding of where clinical negligence litigation sits within all of this, than I have seen to date.
In short, SCIL’s collaborative work to inform and warn of the consequences of these proposals, and to offer better thought-out and wider solutions continues.
