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Making gifts and providing for others’ needs – OPG guidance
Sameena Munir
The Medical Defence Union is lobbying Parliament for changes to laws relating to clinical negligence claims. It has written an open letter to the Chancellor of the Exchequer for ‘decisive action to tackle soaring legal costs’. Among its requests, the MDU is repeating its position that section 2(4) of the Law Reform (Personal Injuries) Act 1948 should be amended. This legislation requires awards of compensation for future care needs, to be based on the cost of future private care and to disregard the availability of treatment within the NHS.
This is a proposal that the MDU first made more than a decade ago and has since made 'repeatedly'. It considers that the repeal of this section would be 'truly far reaching'.
Dr Matthew Lee, CEO of the MDU, has said that the NHS risks paying twice in some cases if claimants receive compensation based on private healthcare costs and then 'choose to receive restorative treatment on the NHS'.
Historical anomaly?
The MDU refers to section 2(4) as 'legislation enacted before the NHS existed' and claims it is a 'historic anomaly'. However, in my view, this is very confused reasoning in light of the fact that the section itself refers to the NHS.
The section originally stated: ‘In an action for damages for personal injuries….there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the … National Health Service Act, 1946,...’. The section has since been updated.
The Law Reform (Personal Injuries) Act is dated 30 June 1948. The NHS was established just five days later on 5 July 1948, when the National Health Services Act 1946 came into effect. The Law Reform (Personal Injuries) Act was clearly passed at a time when the NHS and its purpose (to provide free healthcare) were known. Therefore, the argument about the timing of the Act seems simply to be splitting hairs.
Relieving the burden on the public spending?
If claimants - who require treatment having been harmed by medical negligence - are not able to claim the cost of accessing help privately and are forced to use the NHS, this will simply increase the burden on our already overstretched health service.
I would suggest that this scenario is also potentially unfair to victims of clinical negligence who often need rehabilitative treatment as quickly as possible. It does not seem reasonable that claimants should have to wait for treatment from an institution that has already caused them harm and in which they may have now lost faith.
Despite the point the MDU makes that some claimants may be obtaining compensation for private procedures and then instead accessing the treatment on the NHS, my experience would suggest otherwise. I have found when acting for claimants in clinical negligence cases that their priority is to have choices over their future in circumstances where so often so much has been taken away from them. Many of them fear the level of care they might receive in the future from the NHS. They can even be too traumatised to return to the hospital where they were injured. They worry that they will be discriminated against because they have brought a claim. Having choices as to treatment inevitably includes being able to decide when, where and with which practitioner.
I find that claimants actively want private care – the care that the law as it stands allows them to obtain. To take away this choice on the basis of a supposed risk that they may choose to have NHS treatment is far from appropriate. As noted by Suzanne Trusk, executive committee member of the Association of Personal Injury Lawyers, there is 'no evidence that victims of NHS negligence take that money and then use NHS services 'for free'.
It is also important to consider how repealing section 2(4) could apply to other injury cases beyond clinical negligence. If repealed in full, this would include all personal injury claims. In these circumstances, how would the NHS cope with all of the additional patients who could no longer afford private care? Conversely, as other commentators have pointed out, if the repealing of section 2(4) were limited only to clinical negligence, we would then be left with a two-tier system whereby what you are entitled to depends upon how you sustained your injury. For example, a motorcyclist who loses a limb in a road traffic collision can be awarded a state of the art prosthesis worth tens of thousands of pounds but an NHS patient who loses a limb through negligent treatment must wait their turn and accept a much more basic prosthetic.
In conclusion, the freedom to choose in circumstances where you have been harmed by medical treatment seems little short of a fundamental right. Without it we would all be the poorer.
About the author
James is the head of our Medical Negligence and Personal Injury practice and joined the firm in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and personal injury cases for over 30 years.
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