Nicola Edgar

Sir Rupert Jackson, a former Court of Appeal Judge whose views have previously formed the basis of government policy, has set out radical proposals for overhauling the medical negligence law and procedures for handling claims south of the border. At a medico-legal conference in London earlier this month, he proposed various reforms, including:-

1. A new simplified test for liability;
2. The introduction of compensation on fixed levels; and
3. The introduction of a tribunal system for hearing medical negligence claims, alongside disciplinary matters.

Pressure on the NHS

The NHS is under an unprecedented amount of pressure, with the legal bill for claims in England increasing in recent years from £583m in 2008 to £1.6bn in 2016. In Scotland, the value of claims paid in 2018 was £33.6m.

Jackson acknowledged that the “looming problem” of an aging population will further stretch the NHS, resulting in additional pressure on doctors and other medical practitioners. He envisages that when mistakes are inevitably made, doctors will rely on systemic issues, including lack of staff, rendering their jobs impossible. For this reason, Jackson is proposing a new simplified liability test, which is whether the patient has suffered “reasonable avoidable injury”.

Proposed Reforms

This proposed test is significantly different to the current test which focuses on whether there has been a failure which no doctor of ordinary skill would be guilty of if acting with ordinary care. Jackson argued that this new test would “depersonalise” the investigation of liability, ensuring that the medical practitioner involved was not named in proceedings. He argued that “the blunt fact is that all professional people make mistakes from time to time…they should not be so humiliated that they give up altogether”.

Jackson accepts this new test may result in an increase in successful claims being made against the NHS. To tackle the inevitable higher cost of settling claims, he proposed introducing compensation on fixed levels. He considers this approach would ensure a more equal distribution of available funds between claimants, and address the current situation where a small number of claimants are successful in recovering a higher level of damages.

Jackson also proposed abolishing the various disciplinary tribunals for health professionals and introducing a new clinical chamber where specialist judges hear claims, whilst sitting alongside medical experts. He argued, this would allow a single fact-finding hearing to facilitate both disciplinary proceedings and claims.

Opinion

Medical negligence claims are notoriously difficult to prove. This is due to the often complex medical issues involved combined with the current test being difficult to satisfy. The standard of care required is that of a competent medical practitioner of ordinary skill acting with ordinary care, as opposed to the best care available. Causation must also be proven. The simplified test would likely result in a greater number of claimants being successful in proving negligence against the NHS.

However, it does not seem just to suggest that in order to balance out the increase in successful claims, compensation should be reduced. Claimants who have a valid right to compensation should surely not have the value of their claim curtailed to allow a greater number of claimants to receive lower sums of compensation. This suggests that there would be a finite sum for compensation which would require to be divided between claimants, as opposed to each claimant receiving what they are entitled to in order to cover their loss. The nature of medical negligence claims and the different experience of each individual does not lend itself to fixed level compensation.

In Scotland, there are arguments to be made that the current system results in unnecessary high expenses. In the majority of cases, liability is not admitted. This results in often extensive investigations into liability, requiring the instruction of multiple medical experts. It is common for settlement to be achieved shortly prior to Proof.

There is currently a pilot scheme being coordinated by the NHS Central Legal Office which may result in the introduction of a Pre-action Protocol for medical negligence claims, similar to the one in place for personal injury claims. This would likely require greater cooperation between parties and disclosure of medical evidence at an earlier stage, which would no doubt facilitate earlier resolution of claims without the need to raise court action. The cost saving for the NHS in reducing the numbers of litigated cases could be significant.

Another potential way of reducing the cost of litigation would be for the NHS to consider greater use of mediation. In my experience, even claimants who receive substantial damages are left feeling unsatisfied with the process. Whilst damages are the only means of compensation available and this money will be vital to protect a claimant’s future, it is often difficult to put a figure on what a claimant has been through. Reassurances about changes in procedures, an acknowledgement of a failure or an apology would go a long way to giving individuals closure at the end of a long, stressful litigation process. The value of a face-to-face meeting should not be underestimated in achieving that.

Nicola Edgar is an associate at Morton Fraser