As pressure starts to reduce a little on the NHS after a torrid winter period the challenges facing public health services in England are becoming more evident. While it will depend upon which documents you read (and possibly your political leanings), the NHS budget for England in 2017/18 will be around £122 billion, or £2,200 per person. The majority of this, £108 billion, is spent on the day-to-day services of the NHS with the balance spent on public health initiatives, training, etc. However, reports from several news sources have cast a very uncomfortable light on the level of personal injury payments made by the NHS.
Spending On Medical Negligence Claims
Unfortunately, while there has been significant investment in the NHS over the years the system does seem to be creaking and growing instances of medical negligence need to be addressed. A number of prominent leaders in the healthcare service, including the British Medical Association, recently warned the government of the need to contain personal injury payments for medical negligence which are taking more than £1 billion away from front-line services.
The NHS spent a staggering £1.7 billion on negligence claims during the 2016/17 financial year which is double the level of just 2010/11. There appear to be a number of issues which need to be addressed including:
- Increased staffing levels.
- More focused investment.
- More training.
- Better facilities.
- Improved working conditions.
- Damaging political infighting amongst leading UK parties.
While £1.7 billion was spent on negligence claims in 2016/17, if all outstanding claims today were successful the NHS would be hit with a staggering £65 billion bill. This compares with £29 billion in 2014/15 which is a significant increase over such a short space of time. Even though less than 3% of compensation claims are successful, where NHS medical negligence is alleged, it is the overall trend which is concerning.
Claiming For Medical Negligence
In many ways there is a degree of negative bias towards claimants in the media at the moment suggesting that those pursuing medical negligence claims against the NHS are somehow taking money away from frontline services. The reality is that a growing number of individuals are suffering from medical negligence as a consequence of NHS treatment, or lack of treatment, and quite rightfully they are entitled to sue for compensation. The idea that public and private bodies are somehow treated differently in the eyes of the courts, in relation to negligence and compensation, is flawed.
All public and private bodies/ companies offering a service or a product to the general public are liable in the event of negligence. However, it does look as though the process for claiming medical negligence against the NHS in England will change with a number of suggestions under consideration such as:
Fixed Cost Schemes
At this moment in time there is a fixed cost scheme which covers negligence claims up to £25,000. In line with recent changes to the whiplash claim system, as one example, this ensures that legal costs are controlled and do not become a way in which rogue operators can milk the system. There is growing pressure on the government to increase this fixed cost scheme cap to £250,000. The idea that the costs incurred should be proportionate to the level of compensation claimed seems fair but putting in place new regulations, new guidelines and amending the fixed cost scheme system will not happen overnight.
Adjustments To The Ogden Rate
The subject of the Ogden rate has been extremely controversial and while there is no doubt that the historic rate was out of sync with the current financial environment, it has led to a significant increase in costs. This is the discount rate which is used to calculate compensation required for future treatment. The significant reduction in the Ogden rate recently announced by the government could lead to a fundamental change in the way insurance companies cover private businesses for negligence going forward. Costs are rising and it will not be the insurance companies who pay!
A recent example saw a perfectly valid claim for medical negligence compensation, which left a 10-year-old girl with cerebral palsy, increase from £3.8 million to a substantial £9.3 million purely and simply as a consequence of the change in the Ogden rate. It is injuries which require long-term treatment that will see the greatest rise and this perhaps gives an insight into the future direction of overall NHS medical negligence payouts.
Future Funding Of The NHS
While the politicians continue to bicker and fight about future levels of NHS funding, the system is creaking and medical negligence payments are almost certain to increase in the short to medium term. The fact that the NHS is “self-insuring” means that all compensation payments are taken from the central pot which leaves less for investment, creating an environment where greater instances of negligence are likely and the vicious circle begins.
In reality a massive increase in the NHS budget, targeted investment in staff and equipment, not to mention a pool put aside to cover ongoing negligence claims is needed now. There is talk of an NHS tax which would see a specific tax revenue stream set up to fund the service going forward. This type of scheme has been proposed many times in years gone by although, while the general public have yet to be formally consulted, there does seem to be a growing consensus at least amongst the political elite.
Outsourcing NHS Services
At this moment in time it seems as though or more and more NHS services will be outsourced to private companies in order to reduce at least some of the growing stress on the system. While the subject of transferring medical negligence to these outside parties has not been discussed openly yet it seems logical that a third party paid to carry out a particular service would be liable for any negligence and compensation payments. This could prove to be a useful release valve for the ever-growing cost of negligence claims against the NHS although you would expect private companies to charge a fee which reflects the ever increasing danger of being sued.
Over the years we have seen suggestions of charging at source for those in a position to pay for their treatment but this would seem to go against the ideology of the NHS, a service free to all. One way or another, taxpayers will need to increase their contributions to the NHS in England whether directly or via additional taxation. We are currently in a situation where more and more funding is being used to settle medical negligence claims, reducing front-line investment which creates an environment for more potential negligence claims.
Conclusion
It is unfortunate that the financial difficulties facing the NHS in England have been used by many as a form of emotional blackmail against those who have suffered medical negligence when receiving treatment. In general, we know that changes in working practices and additional investment are rarely forthcoming unless the parties involved feel some kind of financial pain. So, those with valid medical negligence claims against the NHS are not only claiming what is rightfully theirs but also prompting companies and public bodies (and maybe politicians in this scenario) to face up to their legal obligations.
Unfortunately, at this moment in time it seems as though Brexit could place further pressure on the NHS as a large number of medical staff originate from other areas of Europe. There is no simple answer to the growing problem of medical negligence in the NHS, there is no simple solution to the funding problems but we must not lose sight of the fact that many are suffering sometimes life changing injuries as a consequence of medical negligence. They should also have a voice…..
