As we reflect on two years that have pushed our remarkable but overstretched NHS to breaking point, it is odd that so little attention is given to a legal phenomenon that is quietly draining it of billions of pounds every year. As I have previously argued in Prospect, clinical negligence litigation casts a baleful shadow over the NHS in terms of cost, both financial and in terms of responding to the needs of patients and of the public. Last month, I gave evidence to the House of Commons Select Committee on Health and Social Care, chaired by Jeremy Hunt, which is holding hearings on medical/clinical negligence litigation.
I argued that where patients suffer avoidable harm which may amount to negligence, rather than leaving it to the patient to pursue healthcare professionals and institutions through the courts by way of litigation, a different approach was called for—a radical approach. It involves separating the needs of the patient who has suffered harm from the conduct of the healthcare providers. The patient’s needs should be met by the NHS and social services without their having to look around for somebody to sue. Separately, but simultaneously, the conduct which led to the harm should be examined and addressed by an effective regulatory system empowered to respond appropriately. Lessons would have to be learned and disseminated to ensure that healthcare providers (both institutions and people) could be held to account.
At the hearing in November, I was conscious of the fact that members had been made aware of my piece in Prospect. I presumed, therefore, that they were familiar with the approach that I’ve just described. So, when asked to contribute to the hearing, I decided to spell out and make explicit what was implicit in what I had previously said. Examining what this approach would look like in practice, using hypothetical case studies, exposes how wholesale the reform must be. Yet while in one sense it may appear more radical when cast in such a light, it is also just plain common sense. It may not be seen as such, of course—particularly by those who see advantage in the current system of clinical negligence litigation or who fear making anything other than baby steps whenever change is mooted.
The need for a radical approach flows naturally, indeed inevitably, from the logic of the problem inherent in the idea of litigation. Consider the following. The context is healthcare delivered by the NHS (with regard to litigation, private-sector arrangements are just that—private matters for patients to arrange, including provision for what happens if anything goes wrong and insurance in the event of clinical negligence).
Someone, let’s call her X, is taken ill or receives some form of medical treatment. Unfortunately, for some reason, during (or as a consequence of) her care, she suffers some unexpected harm—a stroke, for example. There is no question of any negligence or wrongdoing. It was just one of those things.
Someone else meanwhile, let’s call him Y, suffers some unexpected harm while being treated—a stroke, for example—but in his case it’s because of the negligence of those looking after him.
The consequences for X and Y are the same. Let’s assume their needs are the same. Clinical negligence litigation is not an option for X. It is for Y, with all that could follow in terms of financial compensation and cost. Does this make sense?
Certainly, during the hearing in November I had the impression that the affairs of X and Y were considered to be just the way things were, part of the world we live in. If change were on the Committee’s agenda, the strong sense was that it would be at best interstitial, tinkering at the edges. The fact that messing about with the law is thought to be the Ministry of Justice’s job rather than the Department of Health and Social Care’s may serve as a further inhibiting factor in a world where joined-up action is not often a smart career move. The chairman, of course, should be congratulated for enquiring into what has been a national nightmare for decades. But there was a sense that gradualism may be enough to put things right or make things better; that radicalism was for romantics or elderly academics (I may be the second, but am no romantic—just interested in exploring policies which do and don’t make sense).
On its face, the Committee was concerned with the pros and cons of clinical negligence litigation. Rather than any form of more radical solution, however, the mood of the Committee and of the hearing reflected what lawyers call the technique of “confess and avoid.” Yes, the current system has its flaws, but the way forward should be by way of remedies which, essentially, seek to improve it rather than move on from it. There was talk of “mediation,” of more effective complaints systems, of early engagement with lawyers who can guide patients towards some sort of resolution, short of suing (though suing is always there in the background). Lawyers were represented as part of the solution rather than a significant part of the problem. They were portrayed as benevolent and wise people who could safely be entrusted with the public interest—a relatively unusual view. In essence, the “solutions” being discussed and proposed could be described as a form of “litigation lite.” They still contemplate “parties,” “sides,” “damages,” and a contest over money and accountability (a contest to be fought out or resolved).
The radical approach I set out in my previous piece would eliminate this notion of a contest. It would make clinical negligence litigation irrelevant. Seeing this approach through, however, will involve a further step, to put in place a completely new system designed to abandon the eye-wateringly expensive, hopelessly inefficient, and grievously unfair current approach and replace it with one that addresses the needs of patients in the future, when things have taken a turn for the worse for them. Let me explain.
“Lawyers were portrayed as benevolent and wise people who could safely be entrusted with the public interest—a relatively unusual view”
When things go wrong, the evidence is clear beyond peradventure that patients, including our X and Y, want the following: to know what happened; how it will affect them in the future; whether it was just one of those things or was there some error in their care; if there was error, how it came about; whether there will be proper accountability; and whether, if there are lessons to be learned, they will be learned. They want answers. Most of all they want to understand. Money at this point is rarely on their mind.
But money then enters the picture. Why? Because in Y’s case he has suffered harm due to negligence. If he finds his way to a lawyer and his “case” is strong enough to warrant the investment, he will be told that he can get “compensation” or “damages.” This, he will be told, will ensure that he will be able to pay for the cost of any care that he now needs—both healthcare and social care.
Let’s take Y’s healthcare first. While the NHS would look after him for free, if he gets “damages,” it will allow him to opt for private care. Of course, if he does so, the net effect is that, since the money is being paid by the taxpayer-funded NHS healthcare provider that he’s sued, the taxpayer ends up funding the provision of private healthcare—an odd (crazy?) position. And the oddities don’t stop there. Quite apart from the irony of the taxpayer subsidising private healthcare, there are others who are also in line for the subsidy—the lawyers, the insurers, the businesses behind the private sector, the beneficiaries of the various administrative costs and so on. The cost of Y’s healthcare, which the taxpayer has to pick up the tab for, is significantly inflated. Even those most devoted to the status quo may find this way of getting care to him just a tad inefficient. And another oddity: the more care that Y needs, the longer it will take to agree on Y’s “damages,” as the healthcare provider seeks to protect its resources and Y’s people push for as much as possible. Who is looking after Y in the meantime? Why, the NHS.
What about social care? By virtue of the way that social care is currently organised (and will be in the future, given the recent proposals of the government), Y or his family would usually have to pay for it to a greater or lesser extent. Y can avoid this if, by suing the healthcare provider, he can get them to pay. Litigation, if it’s successful (though the odds aren’t great), will get Y the money that ensures he will receive all the care and support judged necessary (from round-the-clock nursing to physiotherapy, speech therapy and so on). It will be bought on the market.
Again, the net effect for the taxpayer is perverse. The taxpayer will end up funding privately provided social care with its various added-on costs, since there is no incentive in the system to economise. Moreover, on top of this cost, given the scarcity of resources in the sector, there will be a further cost to the taxpayer in the consequent reduction in the provision of social care to everyone else who needs it in what is a zero-sum situation, made worse by shortages of staff and low wages.
Now let’s look at our patient X. She has suffered similar harm to Y’s, but there’s been no negligence. Things just turned out badly. Seeking financial compensation—money, in everyday language—is not part of her equation. She must look exclusively to the NHS to look after her. As for social care, she must take her chances with an overburdened, understaffed and, depending on the circumstances, expensive social care system.
Is there not a fundamental issue of fairness and justice here? Rather than focussing on the needs of X and Y, the current system of litigation focusses on the cause—was it negligence or not? In Y’s case, the negligence means that, if he can navigate the system, he stands to be financially supported. By contrast, X faces the same medical future but in the absence of negligence, it is a significantly uncertain future.
If outcomes were our guide, the system would not distinguish between X and Y. They would both receive the necessary healthcare from the NHS. (After all, as we’ve seen, that’s what Y will have been getting while the ins and outs of litigation are explored, often for years.) Crucially, all of the concerns about causation would melt away. They only exist because they are part of a system where it is necessary to locate somebody or some organisation that can be said to have caused what went wrong, and so can be held responsible to pay out taxpayers’ money. There would be no need to spend time, money and heartache doing this if care and support followed the outcome whatever the cause.
“Is there not a fundamental issue of fairness and justice here?”
There would no case for private healthcare, though it would be open to Y to opt for it at his own expense. As for social care, X and Y would both get whatever was needed. This is where we come back again to money. Fairness demands that, all things being equal, X must have the same support as Y. Funding must be provided. The only fair system for such provision is that it comes from the taxpayer through general taxation. It must be provided by local authorities and other public institutions to limit the extent of any profiteering.
Currently, funding from the public purse for social care is woefully inadequate and recent proposed changes do not bode well. That said, while we await a fairer and better-funded social care system, one area of change could and should be introduced immediately: a change which allows the system to respond to the needs of those affected by things going wrong in the provision of healthcare, whatever the reason. Y would get the physiotherapy he needs. X would get the alterations to her house which will allow her to continue to live independently. They will get them because they need them and because a society which cares for and about everyone should make sure they get them, regardless of the happenstance of what befell them.
What I have set out replaces an arbitrary approach which concerns itself with causes with an approach based on needs. It does not distinguish between patients on the basis of what happened to them but rather on the consequences. It introduces a fairness which has previously been absent. The cost will need to be assessed, but I venture to suggest that it will be nowhere near the costs of the current system, both in terms of responding to Y’s needs and in terms of the contrasting neglect suffered by X.
The approach that I propose must be accompanied by a beefed-up, data-driven system to regulate the provision of healthcare, of the sort I referred to in my previous piece in Prospect. Such a system will provide us with the means to address failings and ensure accountability, so that lessons are learned and acted on when something has gone wrong.
It may be that what I propose is too radical an approach to have a chance of success. That’s why it should succeed.
