MDDUS urges Government to address rising clinical negligence costs

MDDUS is urging the Government to acknowledge the need for tort reform and set out a comprehensive plan for its implementation in order to address rising clinical negligence costs.

Following examination by the Public Accounts Committee of the National Audit Office (NAO) report on Managing the costs of clinical negligence in trusts, MDDUS is urging the committee to hold the Government to account in addressing the many cost drivers prior to publication of its report later this year.

According to the NAO, the cost of claims handled by NHS Resolution's Clinical Negligence Scheme for Trusts (CNST) is increasing faster than year-on-year increases in NHS funding, and is therefore impacting on how much NHS trusts can spend on care. The NAO report concluded that "many of the external drivers required to reduce the cost of the CNST are outside the control of NHS Resolution". This reflects the Department of Health’s findings in its July 2016 indemnity review that, in the GP context, "the increases in the cost of indemnity are due to factors largely out of the control of the medical defence organisations".

Written submissions by MDDUS to the Public Accounts Committee highlight the key measures it considers capable of having the biggest impact on the cost of clinical negligence litigation. Namely: reversal of the discount rate decision; introduction of fixed recoverable costs; and repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948.

MDDUS senior lawyer and practice development manager Joanna Jervis said: "If the Government is really serious about reducing the cost and stress burdens of unjustified litigation on the NHS and GPs, then it needs a joined-up approach on tort reform and to deliver promptly on the promised proposals to change the way in which the discount rate is calculated.

"We are disappointed that the committee did not press the Permanent Secretary for Health on the reasons for the delayed response to the fixed recoverable costs consultation that was expected in July.

"The Department of Health needs to do more than simply rubberstamp Lord Jackson’s recommendations which take on a narrow perspective and fails to engage with the wider impact of unjustified litigation on the NHS and GPs.

"We are looking for guarantees from the Government that it will move with speed to correct the discount rate fiasco. We have been at the forefront of the debate to put some rationality into the system and it is imperative that a new rate is set that is fair to claimants and defendants alike and gives the market greater certainty.

"The damaging impact on the NHS and GPs of the demonstrably flawed decision in February 2017 is continuing and the Lord Chancellor has the power (indeed, the duty) to rectify this situation now."

Legislation to reform the Law Reform (Personal Injuries) Act 1948 is also needed urgently.

Ms Jervis added: "Awards continue to be calculated on the basis of the costs of private sector care, when all the evidence shows that those who receive damages, quite rightly, use excellent and readily accessible NHS services where they can do so.

"A failure to take immediate action on these matters has a continuing impact on costs in the context of CNST claims and those against self-indemnified GPs. We welcome the Permanent Secretary for Justice’s suggestion of a Joint Programme Board to look at the wider tort reform agenda but this body must drive action, not be another talking shop."