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Formalising Health Care Disputes Could Save the NHS Millions

06 March 2023

Lead by Mr Alistair Jenkins - CBS Co-opted Board Member and Past President of SBNS

As a society, we often speak of our ‘broken NHS’, lamenting a lack of funding, increased pressures, and a stressed-out workforce. Rarely, however, do people talk about the elephant in the room: the true cost of medical negligence litigation.

The current system fails both patients and practitioners. Patients must request costly medical expert reports to even begin a clinical negligence claim, before navigating a complex and lengthy process during which they have to prove negligence on a 50+% balance of probabilities. This is incompatible with legal arguments, during which evidence must be based on facts with 95% confidence. In a nutshell, this means that two patients with identical injuries and circumstances could be compensated wildly differing amounts, based on how (and by whom) the legal arguments are presented.

Furthermore, compensation is awarded in accordance with Section 2(4) of the Law Reform (Personal Injuries) Act 1948, which states that claimants are to be compensated based on future care provision through the private sector, regardless of the availability of NHS care. Private sector care costs have risen, and continue to do so, and this law needs reforming to reflect the NHS’s current position and the patient’s often complex medical care and treatment requirements.

So, what is the answer? How do we remove the heavy weight of litigation from the shoulders of the groaning NHS? The Confederation of British Surgery proposes, alongside other expert bodies,^[1] a formalisation of the dispute process, an implementation of mediation, and a rationalisation to reflect reasonable costs of future treatment and care.

This is not an untested approach. Many countries have altered aspects of their own medico-legal processes to make them more affordable and to increase fairness. New Zealand implemented No Fault Compensation, which effectively bans suing for compensation, instead focusing on providing assistance with future costs of treatment and rehabilitation, regardless of fault.  ‘Napoleonic Law’ countries, which include France, Belgium, the Netherlands and Germany, have implemented a fairer tribunal/enquiry approach, using (crucially) tribunal-appointed medical experts. This levels the playing field for claimants and defendants, ensuring that the same high-quality expertise is present across all cases.

Our proposal

We propose the formation of a Health Care Disputes Mediation and Tribunal service (HCDMTS), administered by HM Courts and Tribunals Service. The HCDMTS will appoint medical experts on receipt of a letter of complaint and clinical notes, which are to be gathered by the claimant’s solicitor.

Following this, we propose the implementation of three phases of resolution:

• The first phase, which is to be commenced within six months, is the appointment of medical experts, who will provide independent reports to the tribunal and solicitors. There is to be one expert for low value cases, and two or three for high. Following this, mediation is to be undertaken.
•  The second phase is initiated if mediation not achieved in the first phase (within 12 months). This phase seeks to establish breach of duty and causation, which, in more complex cases, may require further medical experts to be appointed, with three independent reports in each medical discipline. Mediation follows.
• The third phase is to be initiated within 24 months. Evidence from the previous phases will be heard in an open court. Medical experts would not normally be needed to be present to give evidence. The final decision/judgement is to be made by the Tribunal Chair/Judge.

Furthermore, we seek to implement the credentialling and appraisal of medical experts administered via the Royal Colleges of Medicine and Surgery, under the current GMC appraisal and revalidation system.

We also propose amendments to the Law Reform (Personal Injuries) Act 1948, rationalising quantum to reflect reasonable costs of treatment and care.

These proposed processes will not only reduce the billions of pounds the NHS pays out for damages and legal costs, equating to between 2 and 5% of each Trust’s budget, but also streamline the process for claimants, resulting in a fairer and less cumbersome process for all

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