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MPs urge end to adversarial clinical negligence system

By John Hyde >>

(7 July 2021)

An influential group of MPs has backed an overhaul of the clinical negligence process and backed measures to keep cases out of court.

The Commons Health and Social Care Committee, chaired by former health secretary Jeremy Hunt, called for the existing system of compensating victims by reference to private healthcare costs to be scrapped, and replaced with appropriate NHS care where available.

Committee members also want action to tackle what they termed the ‘debilitating culture of blame’ which is created by the adversarial nature of litigation hindering learning opportunities after a safety incident.

The committee reported yesterday on the safety of maternity services in England and concluded that the present clinical negligence system is harmful to both the NHS and patients.

‘It is clear to us that in its current form the clinical negligence process is failing to meet its objectives for both families and the healthcare system,’ said the report. ‘Too often families are not provided with the appropriate, timely and compassionate support they deserve.’

MPs said that providing appropriate financial redress to families after an incident was important but also stated the rising costs of maternity claims ‘without sufficient learning and outdated mechanisms’ for calculating compensation was unsustainable.

The report concluded it was ‘particularly unfair’ that wealthier families receive more compensation for a severely disabled child than poorer families because likely lost earnings are taken into account.

The government is currently reviewing the clinical negligence system, and the committee recommended that a rapid redress and resolution scheme is implemented while that process is ongoing.

MPs pointed out that alternative approaches are already in place in other countries where the use of a threshold of ‘avoidability’ rather than ‘negligence’ to award compensation has helped to tackle the debilitating culture of blame, accelerate learning and provide timely support to patients and their families.

‘We believe that adopting such an approach is an essential next step in shifting the culture in maternity services away from blame to one of learning,’ the report added.

The report stated that maternity incidents remain the single highest cost of claims against the NHS in England. In 2019/20, NHS Resolution paid £2.3bn in compensation and associated costs for maternity claims, representing 40% of all claim payments. The National Audit Office has warned that ‘without more fundamental change, clinical negligence claims are likely to continue to rise in the next few years’.

(Courtesy: The Law Society Gazette)