‘Why NHS recovery programme is a positive step towards reducing negligence cases’

Jonathan Baker

COMMENT

By Jonathan Baker, partner and medical negligence lawyer at Wilkin Chapman Rollits

Health Secretary Wes Streeting’s decision to place five NHS trusts into a special recovery programme – including Hull University Teaching Hospitals NHS Trust and Northern Lincolnshire and Goole NHS Foundation Trust – is a clear sign of serious, systemic pressures in parts of the NHS.

In my work supporting people who have suffered harm as a result of medical negligence, we have seen a growing number of enquiries from local people who echo some of the concerns raised nationally about under-performing trusts. These include persistently long waiting times, staffing shortages, delays in diagnostics and quality‑of‑care concerns – all of which require specialist and targeted intervention.

To be clear, these challenges are not a criticism of frontline NHS staff, who do a fantastic job under incredible pressure.

While the five trusts placed in the recovery programme do not necessarily see more negligence cases, the issues raised potentially increase the risk of avoidable harm. Vulnerabilities can arise through a combination of factors, including staffing gaps and reliance on locum or bank staff, which can lead to disjointed or delayed care; as well as longer waiting lists, which can cause otherwise avoidable harm.

The recovery programme is a step in the right direction, helping to prevent this harm occurring in the first place.

However, at the same time, a Public Accounts Committee report has recommended limiting the recovery of legal costs in certain clinical negligence cases, particularly lower‑value claims. While no one wants the NHS to lose money that could be spent on patient care, this should not be at the expense of access to justice for those who have been negligently harmed. 

Legal costs are made up of expert fees, court fees and insurance premiums, as well as the lawyers’ fees. These are all necessary costs for claimant must incur to independently prove what went wrong. These costs are often not comparable to those of the defendants, who may already have access to internal clinical expertise, documents and resources.

Restricting the ability for legal costs to be recovered will only make it harder for people to have their concerns independently investigated and answered – and leave them unable to be compensated for the losses they should never have endured. That cannot be the right outcome.

The special recovery programme highlights where improvements are needed. If the Government is serious about reducing the overall cost of clinical negligence, it must focus on reducing the causes of avoidable harm in the first place – not limiting harmed patients’ access to justice and recompense.