David Czarnetzki

 “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 MUSTSection 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 ParliamentThe 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”.

(source: theyworkforyou) 

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)