“The system for compensating injured patients in England is not fit for purpose”
This phrase is an extract from paragraph 84 of a Health and Social Care Committee report on NHS litigation reform published on 28th April 2022. The full report can be found here.
For those with serious interest in NHS complaints and investigations, the report does need to be read in full and it opens up with these comments:
“NHS spends 2% of its total income on clinical negligence compared to half that level in New Zealand or Sweden”.
“The NHS expects to pay £82.4 billion for clinical negligence in the future. This amounts to £3600 per household”.
“Advocates of the current system said the best way to diminish costs is for the NHS to reduce harm and improve patient safety”.
Do NHS patients suffer twice the harm as patients in New Zealand or Sweden? Could it be that they have different systems for dealing with clinical negligence? Maybe lawyers here are better at representing patient’s cases once they get involved. There are many conflicting views as expressed by those who gave oral and written evidence to the committee.
The report itself runs to 198 paragraphs and makes many conclusions and recommendations. One recommendation in paragraph 84 is that;
“when a patient is harmed, they or their family should be able to approach an independent administrative body which would (my emphasis) investigate their case. Should it be found that the patient suffered harm because of their care, they would receive compensation”.
So what is this investigative body to be? Perhaps it will be the Health Safety Investigation Branch (HSSIB). Maybe it will be the Special Health Authority (SHA) which, in January 2022 the government announced it was creating to conduct “independent investigations relating to intrapartum stillbirth, early neo-natal death or severe brain injury diagnosed in the first seven days of life and also maternal deaths” (paragraph 79 of the report). It could, of course, be another new body or even the Parliamentary and Health Service Ombudsman, to whom PHSOtheFacts remains the nemesis. (see PHSOthetruestory blog 25th June 2021 “Who do you think you are kidding Mr. Behrens which can be found here)
I find it strange that, within this lengthy report, and supporting documents, the Ombudsman did not give evidence to the committee either verbally or in writing. Only paragraph 155 had any reference to UK Ombudsman schemes in general and stated:
“UK Ombudsman schemes do not choke off the possibility of court action entirely but litigants are usually required to have gone to the Ombudsman before being granted access to the courts. Furthermore the courts regard properly constituted, independent Ombudsman as an acceptable model of justice, typically endorse their decisions and Ombudsman often have their powers set out in primary legislation”
This, of course, is true. From my own experience, I have witnessed a court uphold a decision by the Financial Services Ombudsman and also recognise that a decision of the Motor Ombudsman is unlikely to be overturned by the court. The issue is that each Ombudsman is governed by separate legislation and, without changes to his governing legislation, the Parliamentary and Health Service Ombudsman can independently decide whether, what and how to investigate. He does not necessarily investigate and the only course of redress to any decision he makes is the expensive sledgehammer of a Judicial Review.
The legislation governing the Ombudsman is the Health Service Commissioners Act 1993. This states he is appointed for “the purpose of conducting investigations”.
Furthermore, section 1 of the legislation states he MAY conduct investigations as opposed to MUST. Section 4 (1)(b) of the Act clearly states he is not empowered to investigate if remedy is available by way of proceedings in any court of law.
The relevance of this discretion becomes clear when reading the following exchanges between Richard Fuller MP and Heather Wheeler MP and goes some way to explaining why patients pursuing clinical negligence cases feel obliged to engage in civil action rather than an Ombudsman enquiry.
Richard Fuller, Conservative MP for North East Bedfordshire recently asked a written question of the Cabinet Office:
“To ask the Minister for the Cabinet Office, what recent assessment has been made of the
a) Effectiveness of the Parliamentary and Health Service Ombudsman
b) Quality of PHSO customer service
c) PHSO responsiveness to enquiries from hon. Members.”
On 27th April 2022, Heather Wheeler, Assistant Whip and the Parliamentary Secretary at the Cabinet Office let the cat out of the bag with this response:
“PHSO is a Crown servant that reports directly to Parliament. The Ombudsman is not accountable to the government for its performance and sets its own standards for how it delivers its objectives (my emphasis). Further to this the hon. Member may wish to write to the Public Administration and Constitutional Affairs Committee (PACAC) that acts as the scrutiny body for the Ombudsman”.
PACAC took evidence from the Ombudsman at a scrutiny session on 14th December 2021 and as I write has yet to publish its report.
Returning to the main theme of this article, the Health Select Committee reflected, at paragraph 63 that the Government evidence was clear that litigation claims are not the primary source of learning for the NHS, which is best undertaken at source and as close in time to the event as possible.
Paragraph 64 reflected the evidence of academics at Manchester Metropolitan University who found:
“It is very difficult for NHS Trusts to be able to share experiences and whilst one Trust may learn from reflection on the litigation incident, this learning is then not shared with other Trusts who may repeat the same mistakes”
It would seem that NHS Resolution has no role is sharing learning from litigation events around the country. Cynics could justifiably say it helps keep them in work!
My final point relates to paragraph 197 in which the committee states:
“We are concerned that the Government’s proposal to introduce Fixed Recoverable Costs in clinical negligence cases below £25,000 may compromise access to justice for the poorest claimants”.
Everyone can make his or her own mind up about what is going on here. My view is the Government want to see a reduction in the cost of clinical negligence claims and that has to be a good thing. However, addressing the causes of negligence as opposed to the symptoms must be the priority and it should not be made more difficult for patients and their families to seek compensation and have a properly built in independent appeal system rather than the ‘take it, leave it or go to judicial review’ which is how PHSO operates under his governing legislation. This is why I am opposed to PHSO continuing to have involvement in health related cases.
The political answer seems to be to create an increasing number of quangos such as HSSIB, SHA, PHSO CQC. The current situation is that PHSO and HSSIB have ‘protocols of understanding’ in order to avoid duplication yet PHSO is the responsible body for investigating public complaints against HSSIB!
It is likely there will be prolonged debate regarding the issues, considering all the vested interests involved. I live in hope that the politicians will do the right thing for patients and their families by creating a ‘one stop’ shop rather than continue to split responsibilities.
“No patient enters the system with an eye on being part of the ‘clinical negligence litigation’ process”.
(From written evidence submission of DAC Beachcroft – committee reference NLR0052)
The Law Society Gazette
‘Spending on claims by the NHS’s dispute-handling body rose to £2.5 billion last year – up from £2.3bn in 2020/21 – despite initiatives to cut the number of cases going to court. In its annual report published today, NHS Resolution states that a record 77% of claims were resolved in 2021/22 without court proceedings.
According to the report, this was achieved through a range of dispute resolution approaches and continued cooperation across the legal market, which continued to gain momentum during the pandemic. In the year, 16,484 clinical and non-clinical claims were resolved, up from 15,712 in 2020/21’.
‘The NHS Resolution annual report for 2021/22, published last month, showed that claimant costs for clinical scheme increased by 5% to £470.9m, while defence costs rose by 3.4% to £156.6m. The biggest driver of the increase in costs continued to be damages payments to claimants, which rose by 10.3% to £1.8bn.’
Facing facts none of the organisations tasked with holding the NHS to account functions for the users i.e. patients and in that statement I include the CQC, NHS England, PHSO, NMC, GMC and Patients Association. I had a misdiagnosis, solicitor willing to take on case then the medical “expert” one of the top men in his field in the country spoke against the very guidelines he wrote. Unbelievable unless it happens to you but then the medical profession is well known for closing ranks. Ultimately it is these so called “experts” who are the gatekeepers for medical negligence claims and they will always prevent a claim because they can and it is a buddy they are protecting. The whole system is corrupt with deliberate actions to prevent anyone making a successful claim.
Patients now who speak up are bullied, threatened, harassed and persecuted for speaking up. I even had a manager put in writing that staff and the Trust should not be held accountable to external agencies! That is how confident they are that no-one will hold them to account or punish their actions. With that attitude no-one can be surprised with the scandals that emerge all with the same themes of lies, distortion, missing or altered records and a toxic management culture. Patient consent is now a joke, patient confidentiality is the same and if you are harmed or even die that is collateral damage as far as the NHS is concerned.
The NHS runs with risks all the time and knows it as long as they get away with it. A man who died after having his lungs flushed with detergent instead of saline didn’t even get justice at the Coroner’s Court. He was deemed to have died as a result of the earlier injuries he sustained 3 weeks before the incident. I doubt that having an incorrect fluid put into his lungs helped his breathing much. So now even the Coroners are part of the corrupt process. Complaining is a waste of time as responses are cherry picked and don’t address the issues raised. The NHS will never change and is beyond redemption. Not the organisation I knew and worked for with pride for 32 years.
All so very true.
In the meantime, we see again how the cover-up culture allows harm to continue with the PHSO Ombudsman turning a blind eye to the most essential part of the investigation – the hospital-acquired infection which led to the death of the patient. https://davidhencke.com/2022/05/12/exclusive-the-horrendous-painful-death-of-a-met-police-communications-officer-in-st-helier-hospital/
There are so many potential problems with this new body that it is difficult to know where to start.
Firstly, the concept of an independent administrative body is very similar to the existing Health Service Ombudsman. This organisation is so riddled with problems and so disliked by those that use it that setting up a large scale equivalent body to deal with serious issues of negligence should give everybody pause for thought if they are concerned about justice for victims.
Secondly, will the new body be properly funded? Being funded by the state the answer is almost certainly no. The Health Service Ombudsman conducts about 1000 investigations each year, to a standard that is generally regarded as poor. There are about 12,000 medical negligence claims each year. Will the new body conduct 12,000 investigations each year? If so, to what level of quality?
Thirdly, the budget for the PHSO (Health Service Ombudsman) is about £38 million per annum. Will the new bodies budget be 12 times that amount, £456 million. If so then the overall savings will be negligible.
Many more questions come to mind. Who will represent the patients in this new system? Who will decide the threshold for compensation? How will the new body decide on whether the patient harm qualifies for compensation? Who will decide on the level of compensation?
Just reading the executive summary it is obvious that one of the aims of the new body is to reduce the level of compensation paid out. Paragraph 10 “compensation should be based on the additional costs necessary to top up care available through the NHS and social care system rather than the current outdated assumption that all care will be provided privately”.
The idea that an independent body will provide a better outcome for patients who have suffered negligence than the courts can provide just shows how out of touch parliamentarians are, especially bearing in mind the awful experience awaiting anyone unlucky enough to make a complaint to that other independent body, the Health Service Ombudsman.
The way to reduce negligence is to set up a body to properly monitor and study the outcomes of all medical procedures. This does not require a change to the current system of negligence claims.
A very interesting blog David. You have done well to highlight that among the ‘just culture’ rhetoric was a plan to limit litigation legal fee payments to just £25,000. Members of the public need access to far greater funds than this if they are to stay the course against the NHS legal teams, who do not seem to come under the same ruling. This will surely put off many genuine claims. The idea that we need a ‘new body’ to investigate NHS harm and provide compensation negates the work of the PHSO Ombudsman who presently holds this position, yet not a murmur from Rob Behrens to date. He should be horrified to be so undermined. The quote from Heather Wheeler MP reveals that the Ombudsman sets his own standards and holds himself to account for meeting those standards. In other words, PHSO is a totally unaccountable body. Harm to patients has always come a very poor second to reputational harm to the NHS and I doubt this proposal will change that.
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That’s great news Stuart. Glad you have found a way to recover from the ordeal. Looking forward to seeing Big George as the next PM.
Patients and family’s want resolutions and accountability and lessons learned, The compensation culture and institutions wall of legal protections prevent patients and NHS leadership from moving forward, until we find a balance so that accountability and resolution is reached nothing will change