Bankrupting the NHS?

3 January 2013

On Friday, 28 December 2012 The Independent ran a news story entitled, “Negligence payouts ‘bankrupting’ NHS”.  In the article Christine Tomkins, Chief Executive of the Medical Defence Union was quoted as saying “Today claims for babies damaged at birth may cost up to £6m.  Money is pouring out of the NHS to set up ‘one-patient institutions’ when it could be retained in the NHS”.  Rather than addressing issues such as patient care or learning from reoccurring mistakes, Ms Tomkins focuses on repealing the Law Reform (Personal Injuries) Act 1948, which allows the Court to ignore the care the NHS could provide the Claimant while assessing an award of damages.  The law as it currently stands allows the Court to assess care provision based on a privately funded basis.

The cost of care is usually the largest category of loss to be claimed by Claimants so Ms Tomkins states “If you could have regard to what the NHS provides it would reduce them [damages settlements] very substantially.  It would save billions.”  Ms Tomkins’ suggestion fails to address a fundamental point: Care in clinical negligence cases is usually the type of care that is the responsibility of local authorities (a body that is not typically a party to the litigation) rather than NHS Continuing Care. 

Repealing the 1948 Act will not reduce the amount the NHS is required to pay in respect of Claimants future care needs.  In the majority of cases involving catastrophic injuries – this includes birth injury claims, acquired brain injury and spinal injury claims – the Claimant requires social care rather than nursing/medical care.  This distinction is important.  If a Claimant requires medical care then this will be provided, free of charge, through local NHS services, usually a Primary Care Trust.  An example of medical care is a Claimant who requires ventilator support.  However, if the Claimant requires daily assistance with personal care and hygiene, assistance with transfers etc. then the care will be classified as social care by the NHS and will be the responsibility of the Claimant’s local social services department.  Social care is usually means-tested and a local authority can charge an individual for the care and assistance provided.

A typical future care claim will comprise the lifelong cost of employing a team of carers, usually managed by a case manager (an individual typically from an Occupational Therapy or Nursing background), to provide the Claimant domiciliary care and support.  This type of care package can sometimes be provided through NHS Continuing Care where the Claimant has both medical and social care needs.  However, securing NHS Funding is by no means straightforward and is not guaranteed.  As noted in the NHS Confederation October 2012 Briefing, “The distinction between health and social care makes little sense to the individual service user, whose needs cannot be easily categorised into two separate groups.  Given that even frontline staff also have trouble understanding the distinction between health and social care, it may be too much to expect service users to do so if they have more than one type of need.”  

So, who should fund a Claimant’s social care package?  This issue has been considered by the Court on numerous occasions and the law is clear: The wrongdoer pays.  In other words, the Defendant NHS Trust or in the case of private care, the Defendant doctor.  To deny the Claimant the ability to recover the cost of future care will leave him reliant upon the continued availability of local authority care which can vary year to year depending on local government policy and budgetary constraints.  These issues are becoming increasingly prevalent as a result of the current austerity measures.

As a result of budgetary constraints, it is often the case that the Claimant’s local authority is unable to meet his reasonable care needs.  Time and again Claimant solicitors learn of their clients’ struggles while accessing local authority care.  If the Claimant is lucky enough to receive any local authority care it is usually insufficient, inconsistent and unreliable and members of the Claimant’s family are often called upon to supplement care – this is especially the case in birth injury claims.  Claimants’ and their families feel as though they have to constantly argue their case to maintain even the most basic level of care. 

When attempting to assess the system of funding future care as a category of loss within the context of litigation, caution should be exercised while quoting global settlement figures.  Settlements have increased over the years mostly due to the advances in the medical treatment for individuals with brain or spinal injuries and the associated increase in life expectancy.  As damages are calculated with reference to a Claimant’s life expectancy, the longer the life expectancy the larger the award of damages.  To say the ever increasing settlements will bankrupt the NHS is simplistic.  The NHS Litigation Authority now routinely settles larger cases involving catastrophic injuries on a combined lump sum and periodical payments basis (periodical payments order or PPO).  The cost of future care routinely forms part of a PPO which means the Claimant receives an annual payment – uplifted to reflect changes in carers’ earnings – to fund his care for the remainder of his life.  This system allows the NHS Litigation Authority to budget and control its future expenditure and also provides the Claimant with certainty of a lifelong annual payment.  Therefore, total settlement figures are not generally paid in a single lump sum any longer by the NHS Litigation Authority.  Annual periodical payments will continue until the Claimant’s death.  Global settlement figures reported by the press will include the total value of the periodical payments to the Claimant’s estimated life expectancy.  Therefore, the true value of claims cannot be determined until the Claimant’s death which may be some years before or after his estimated life expectancy. 

So, what can be done to reduce the amount the NHS Litigation Authority pays out in damages?  The answer lies in training and robust investigation procedures to identify shortcomings and failings of medical treatment to learn from mistakes and prevent similar failings reoccurring.  The NHS Litigation Authority’s recent report entitled “Ten Years of Maternity Claims” reinforces the point.  The report looked into the pattern of cases brought against the NHS over the past decade and in particular focused on the underlying causes of cerebral palsy cases.  The report identified the presence of repeated patterns of errors within the NHS, resulting in litigation.  This was the case notwithstanding the opportunity for the NHS to learn from failings identified from each successful case brought against NHS Trusts.  Therefore, any attempt to reduce the NHS’ bill for negligence payouts should focus on improving patient care, learning from mistakes and prevention of recurring shortcomings rather than attacking the funding of future care which, given the global figures involved, will inevitably be a headline grabbing story.  Claimants who have sustained catastrophic injuries are, by the nature of their injuries, some of the most vulnerable members of society.  It is only right, and just, that the wrongdoer – whether it be the NHS or the provider of private medical treatment – pay for a Claimant’s reasonable future care needs.

Further reading:

This blog was republished in the Huffington Post. 

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