In 2019/20, 11,682 medical negligence claims were reported in the UK almost a 10 per cent increase on the previous year with a total value of £8.3 billion. This is equivalent to nearly 4 per cent of all health spending in the UK and on a par or even slightly ahead of the cost of litigation in the famously litigious United States.
But even these startling figures do not provide the full picture, since a staggering £83.4bn has been “set aside” for such claims in the future, second only to nuclear decommissioning amongst public sector financial liabilities faced by the UK government.
In their excellent Radix paper on health services reform, Drs Paul Goldsmith and David Colin-Thome and Radix Policy Director, David Boyle, highlighted the deadening hand of the threat of litigation, not just on the NHS but across our public services. They explained how it led to tickbox bureaucracy which slowed the process of decision-making to a crawl, stifled innovation and even led to many clinicians leaving the profession all together.
But they also expressed hope, quoting Dr Max Pemberton that “Decisions that used to take months or even years because of endless pointless form-filling and meetings are now made in less time than it takes to boil a kettle.” Forced by the pandemic to act decisively, clinicians have found themselves empowered to take decisions, with the necessity of action trumping the threat of being sued.
And the NHS has not collapsed in on itself. We have understood in a crisis that we must all pull together; the fact that there might be grounds for legal action doesn’t mean that patients or their families are necessarily prepared to take that route, especially against saintly health professionals and a venerated NHS. More often than not, a simple apology will do.
Meanwhile, what has become clear is that the measures necessary to prevent the threat of litigation also come at a high cost, intolerably high.
In his book, Letters to a Young Doctor, to be launched later this week and the subject of our webinar tonight, Prof Hilali Noordeen explains how despite years of study and training, many doctors quickly become disillusioned and are lost to the profession altogether.
He explores how the culture of blame and fear is endemic with in the health service and is underpinned by the legal and financial issues surrounding accountability.
And yet what is the lesson that the government appears to be drawing from the experience of the pandemic? Is it that doctors can indeed be freed from a culture of management and blame without the NHS being overwhelmed by a tsunami of litigation? Or is it that the solution is one of further centralisation, command and control?
The recently published white paper is deeply disheartening in this regard. Dressed up in a cloak of reducing bureaucracy, the threat is that it offers nothing of the sort: decision making will move from local Clinical Commissioning Groups up the chain of command to the health secretary of the Department of Health and the opportunity for individual doctors to take individualise decisions in consultation with and in the best interests of individual patients will be further diminished.
The pandemic has been traumatic. But it has the potential to offer change for the better: a freer, more localised, ‘unticked’ health service. Whether we are capable of drawing the right conclusions from the experience remains to be seen.
Join us for tonight’s webinar on The NHS Blame Game with Guardian Health Policy Editor, Denis Campbell, Chair of the East Kent Hospitals Trust, Prof Stephen Smith and prof Hilali Noordeen. Register here: https://radixuk.org/events/the-nhs-blame-game-and-how-to-change-it/)