Major changes both to NHS services and funding of clinical negligence claims - a coincidence of timing?

12 April 2013

Significant concerns have been expressed in the media over the impact of the Government’s changes to the NHS implemented on 1 April; GP-led commissioning groups which replace Primary Care Trusts will have responsibility for huge sums of the NHS’s budget and make decisions as to what care patients receive. This is coming alongside the so-called “Nicolson Challenge” whereby the Government is asking the NHS to make efficiency savings of £15-20 billion by 2015. The NHS continues to be squeezed and re-shaped.

The Government’s stated aim is to give patients more choice in the services they use;  others raise concerns that the system will become fragmented and that introducing a profit motive into a public health care system open to all and free at the point of delivery will lead to its collapse.

We hear repeated stories of a health system under strain – a lack of staff, those staff that are present not listening and acting upon our clients’ concerns, lessons not being learned, a fundamental lack of care and openness, themes that were picked up in Robert Francis’ recent report into the Mid-Staffs Hospital scandal.

Our investigations into medical negligence claims provide injured patients and their families with some understanding as to what has befallen them or  a member of their family. In successful claims, we can recover compensation for the often major changes to their lives that these acts have caused.  What is clear from 1 April is that not only is the NHS facing substantial change, but those harmed by medical or clinical negligence are likely to find obtaining access to justice harder and more costly too.

From April 1, public funding of clinical negligence claims, commonly known as legal aid, ceased to be available to the vast majority of claimants – only children who suffer a neurological injury during pregnancy, at birth or within 8 weeks of birth will be eligible to apply for public funding. Even when public funding is still available, it has been significantly restricted in its usefulness as the Government has capped the amounts that claimant’s solicitors’ can pay to experts, who are crucial to establishing the cause, extent and future impact of injuries, whilst leaving their opponents (often NHS Trusts also funded by the Government) free to pay the sums they have previously paid to engage high quality experienced experts, to navigate the complex path that is a clinical negligence claim. This is clearly unfair to patients.

Moreover, with the increasing outsourcing of NHS services to private companies, locating those who are responsible for failings has also become more challenging, costly and time consuming – something we have reported on previously (Who’s driving your ambulance?).

For those not eligible for public funding, solicitor’s firms (including Kingsley Napley) offer Conditional Fee Agreements, so-called “No Win No Fee” agreements.  Up until 1 April, an injured person could recover the vast majority of their legal costs for bringing a successful claim for damages for medical negligence from an opponent who was found liable for his/her injuries. Recovery included not only the legal costs but also insurance taken out as part of the funding of the claim to protect against the injured claimant’s risk of losing their claim and having to pay the other side’s disbursements and legal costs together with their own disbursements; Sums that could be substantial.  Now a part of the solicitor’s costs called the “success fee” together with most of any insurance policy that is taken out will be expected to be borne by a successful litigant.

Further, to be recoverable from an opponent, costs have to be proportionate – the fact that they may have been reasonable and necessarily incurred is no longer enough if it is decided that they are disproportionate – a term that has yet to be fully explained and is anticipated to cause much satellite litigation.
Bearing in mind that a successful litigant is someone who is receiving compensation for injuries that should not have happened and that the injured party recovers only sums to try and meet his/her reasonable needs and a small element for the pain and suffering caused by the injury, this is too harsh a penalty for trying to achieve accountability and compensation from the health service for its negligent acts of harm.  It is not all acts of harm that are compensatable only those that are “negligent” i.e. should not have occurred if all reasonable care had been provided.

The Government has sought to argue that these changes are balanced out by increasing damages for pain and suffering by 10% and introducing a system of costs shifting but it is unlikely that this will be borne out.

These funding changes will affect some of the most vulnerable and disadvantaged in society.  They will not stop us helping those harmed by medical accidents but they will make bringing claims more challenging.  We believe it will become ever more important to have solicitors specialising in the field of clinical negligence to investigate and advise individuals as to whether or not they have potential claims before they expose themselves to the hazards of litigating.

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