Clinical negligence reform – Part 2.  Evidence from two eminent lawyers.

There was a significant level of alignment between the opinions expressed by these two eminent lawyers. Both supported reform of the present system of clinical negligence.

Sir Robert Francis considered that the financial burden of claims for clinical negligence largely comprises awards for the cost of care, because they are measured by the private cost of care, rather than assuming the state will provide. He therefore advocated removal of the right to claim the cost of private treatment and care, on the basis that the NHS could and should be relied upon instead. Such a move would, of course, be highly controversial, not least because there is so much uncertainty over what the state will provide (and to what standard) either presently or in the future.

Sir Ian Kennedy attributed three reasons for a failure to reform the present system:

1. Cultural barrier – the ‘icon’ status of the NHS makes it difficult to admit the possibility of its fallibility.
2. Justice or fairness in identifying some people who will be well looked after with social and health care because of the way in which they were harmed. This has proved too difficult to confront, leading to unfairness in the present system.
3. Money is proposed as the real problem, whereas it is the cost of care, which is currently organised in such a way that it may only be available to some (through the NHS). That needs root and branch reform so that, whatever the root cause of the need, the state provides it.

Sir Ian therefore argued that cost should only be considered alongside justice and fairness, and not isolation.

Both agreed that some form of no-fault enquiry ought to follow any unexpected outcome in the hospital setting. Sir Robert considered that this would be preferable to the current alternative requiring an admission of personal fault, when so often the answer is a systemic one. He said that, when an adverse incident occurs, there should be immediate support to meet the patient’s needs, as part of their treatment package.

Sir Robert’s view was that most people who work in the NHS have little understanding of, or training in, the effect of systems of behaviour and work. Part of the issue is the understandable feeling of personal responsibility for the work that each person carries out. That can naturally lead to a subconscious attitude of defending colleagues.

Sir Ian has long advocated a no-fault no-blame system of compensation, which has been looked at and talked about for many years, but not taken further. Part of the reason may be a fear that it would open a floodgate and the resulting expense could be even greater than the current system. Sir Robert considered that other reforms, notably the measurement of damages for care (see above), would be most likely to reduce the overall cost.

Sir Ian considered that a no-fault no-blame system of compensation in place of a tort-based system may reduce overall costs and would improve outcomes in terms of justice and fairness.

In response to a question about the difficulty of changing culture in the NHS, Sir Ian made the point that a key factor is leadership. By and large, NHS leaders tend to rise through the managerial ranks in departments such as finance or HR. In contrast, Sir Ian pointed to other organisations, such as the armed forces, where notions of leadership are cultivated, so that individuals have an understanding that they are there for a purpose and can inspire the people they lead to look at the world in which they work in a particular way. That is not the case in the NHS. The purpose of all NHS staff, though unstated, should be that they are there first and foremost for patients. There should be no patient safety officer because every person in the institution is responsible for safety. They need a leader who can persuade them of this mission.

The committee is likely only to focus on changes that can be made relatively quickly with the prospect of significant reductions in costs; perhaps Sir Robert’s suggestion of changing the measurement of damages will be preferred to Sir Ian’s major shift to an entirely different system and the cultural changes it would require. Time will tell.

Further evidence was heard by the committee on 11^th January and 1^st February 2022, covering experiences in other jurisdictions, and the response of government and NHS Resolution, which I will deal with in the concluding part of this blog.