In one week in October 2018, NHS Resolution agreed compensation awards in just two clinical negligence cases that could amount to £37 million and £27 million. It should not surprise you, therefore, that there are two ongoing governmental initiatives aiming to address clinical negligence costs.
First is the introduction of state-backed indemnity for primary care in England and Wales, recognising that for some years GPs have been increasingly unable to afford to pay their own indemnity costs. Unfortunately this problem was exacerbated by the dramatic drop in the discount rate from March 2017, which is responsible for the high awards exemplified above.
State indemnity for general practice was launched on 1 April for claims arising from incidents on or after that day though, regrettably, at the time of writing it does not address the liabilities arising from historic claims for the great majority of GPs. However, even if it did fully relieve English and Welsh GPs of the burden of indemnity costs, it would do nothing to address the cause of those spiralling costs. Indeed, it will add considerably to NHS Resolution's total estimated liabilities, which stood at £77 billion at 31 March 2018.
This brings us to the second initiative, a cross-governmental working party on clinical negligence costs. This joint initiative between the Department of Health and Social Care and the Ministry of Justice was convened as a result of the Public Accounts Committee (PAC) recommendation in December 2017, which said that government 'must take urgent and coordinated action to address the rising costs of clinical negligence. This includes: reviewing whether current legislation remains adequate and reporting back to the Committee by April 2018'.
The working party promises its report to the PAC in 2019 and we must all be hopeful that it will come up with solutions that will be capable of implementation and that will address the problem effectively. Tort reform is the only solution, and has been proven to work in other countries across the world. It should be at the top of the list.
Given all the above, it was concerning that the Department of Health and Social Care published a consultation at the end of December 2018 proposing to mandate insurance as the only means of indemnifying clinical negligence claims, while acknowledging that it is likely to be more costly than discretionary indemnity provided by the medical defence organisations.
It is also concerning that the consultation document suggested the proposal would apply only to independent private practitioners and NHS dentists, disregarding the hundreds of thousands of other hospital doctors, GPs and other healthcare practitioners who need indemnity because claims can and do arise from their work not covered by NHS indemnity, such as report writing, medico-legal work and professional attendance at charity and sporting events.
Tort reform is the only solution, and has been proven to work in other countries across the world.
The consultation didn't make any convincing case that insurance, at greater cost, would provide greater protection for patients who are negligently harmed. It also ignored its considerable disadvantages where clinical negligence is concerned. For example, it didn't mention that regulated insurers can and do withdraw from uneconomic lines of business.
This happened most notoriously in 2001, when the St Paul pulled out of the clinical negligence market, leaving many UK doctors and dentists without cover for claims that were notified after their policy had ended. On that occasion, former policy-holders turned to the MDOs to ensure they had the means to compensate patients.
While insurance is regulated, insured doctors have no guarantee that an insurer will continue to provide clinical negligence insurance when it is not profitable or in the interests of shareholders. Equally, there is no guarantee that a policy will be valid if a claim is made 20 or 30 years after an incident, as regularly occurs with clinical negligence cases which typically have a long 'tail'. For instance, the MDU is currently using our discretion to assist a consultant with a very recent claim that relates to an incident from the early 1980s.
The MDU has experience of insurance and discretionary indemnity. We provided members with an insurance policy from 2000-2013, but it had to be wrapped round with discretion to give members access to indemnity for matters outside the policy.
We have provided indemnity to members and compensated their patients for over 130 years, and have continued to do so in spite of many dramatic and unpredictable changes in the legal and economic environment that have only pushed up the costs of claims inexorably. Two compensation awards in just one week that could amount to £64 million illustrate the problem.
The government should concentrate on changing the legal system urgently, in the interests of patients and all those offering them care.
Read more about our response to the consultation here.