Re-thinking Clinical Negligence again - Part 2 NHS or Private Care? (and a short history lesson)

 

This is the second blog post in relation to the recent report by the commons committee – the Safety of Maternity Services in England –

https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm

My previous post looked at the problem of separating Clinical Negligence from other types of negligence claim, and the so called ‘blame culture’.

Today I am looking at proposals to change the basis on which compensation is calculated. The report rightly notes that financial compensation is not always the only or primary reason for pursuing litigation. From the many cases that I handled in practice, it was clear that many victims and families are looking for explanations, answers to questions and an apology. One common outcome which many were seeking is unachievable in a negligence claim - the knowledge that ‘this person’ will never practice medicine again'. But while all this is true, it is also misleading, to think of damages as no more than a ‘payout’ – a word commonly used in the tabloid press. Seriously injured people need care, often for life. A suitable award of compensation is essential to meet these needs. This is a topic that I have touched on before –

 https://thestevecornforthblog.blogspot.com/2019/06/medical-negligence-lets-talk-about.html

“None of these victims have won anything. They and their families are left with a lifetime of struggle through no fault of their own. If they can establish that the injuries were caused by the negligence of medical practitioners, then they are entitled to damages. A small proportion is for the injury itself. The vast majority is to cover their needs for life.”

Which brings me to a familiar proposal in this report –

“100. At present compensation is calculated on the cost of providing private healthcare even when care is provided by the NHS. This is based on legislation that predates the NHS.”

To avoid confusion, if a victim actually does receive treatment on the NHS, they cannot then claim a sum of money based on a fiction that they received private treatment. I think the report is actually referring to treatment being available on the NHS. The proposal is that there should no longer be a right to claim the cost of private medical care; that victims should be required to use the NHS.

A person’s entitlement to claim the cost of private medical care and treatment is not limited to clinical negligence cases. This right is as old as the NHS itself – it does not predate it as the report suggests. It is worth briefly revisiting the history of the legislation.  Interestingly, the Beveridge Report itself looked at this issue. A possible requirement for an injured person to rely on the NHS was rejected by the Monkton Committee for two reasons –

1.       It would lead to courts having to make a choice between the relative merits of the state and other services,

2.       It would be inconsistent with the liberty of the individual if a person was barred from choosing the type of care they received.

This led to s 2 (4) of the Law Reform (Personal Injuries) Act 1948 –

In an action for damages for personal injuries (including any such action arising out of a contract), 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 2006 or the National Health Service (Wales) Act 2006 ] or the National Health Service (Scotland) Act 1978], or of any corresponding facilities in Northern Ireland.

For further reading on this, there is an excellent law commission report from 2015 here - 

http://www.lawcom.gov.uk/app/uploads/2015/03/cp144_Damages_Personal_Injury_Medical_Nursing_Consultation.pdf

In other words, why should an innocent victim of negligence have to rely on treatment from the state, particularly when the need for that treatment is caused by the state itself? That injustice becomes even greater in cases of clinical negligence. This would lead to the unacceptable situation where victims of NHS negligence would be in a worse position than any other injured person.

It is also false economics. The treatment is still being provided. It is not going way. It just becomes a hidden cost as services are diverted.

This again demonstrates the risk in isolating one particular area of negligence for special treatment in order to save costs.

Finally, and a brief aside, it is worth noting that the number and the cost of clinical negligence claims being resolved without litigation has reached a record high –

https://www.legalfutures.co.uk/latest-news/more-nhs-claims-settling-without-proceedings-as-costs-payouts-fall

In my next post we will look at the basis for calculating loss of earnings.