From time to time the thorny issue of clinical negligence—the provision of substandard medical treatment and the role of the legal system in addressing it—edges, uninvited and embarrassingly, onto the public policy agenda. A recent article and subsequent spate of correspondence in the Times rehearsed again the same old tired arguments. The system of clinical negligence is a good thing—it keeps medics on their toes and looks after “victims”; the system of clinical negligence is a bad thing—it squanders money and hovers like a sword of Damocles over medics. This latter position is usually accompanied by a call for what people call “a no-fault” system. I’ll come back to this supposed solution in a moment.
For a government advertising itself as committed to radical reform, albeit less ebulliently since the arrival of Covid-19 and the departure of Dominic Cummings, the inertia is depressing. If ever there was an issue looking for radical reform it is the exposure of the NHS to liability in negligence, the annual burden of which has been put at over £8bn and the overall burden at over £80bn.
It has long been argued that a disruptive, game-changing approach is the only way to address the problems lying behind this extraordinary burden on the taxpayer. While it has repeatedly been said that it cannot go on, it still goes on. The unedifying pursuit of hospitals and healthcare professionals to meet patients’ financial needs continues unabated.
In one of my Reith Lectures of 40 years ago I argued for just such a radical approach. I went so far as to invoke Henry VI—“First… let’s kill all the lawyers.” I was applauded the following day in a Leader in the Times. Lawyers unsurprisingly were not persuaded. And, while picking on lawyers may seem a cheap shot, in this case it’s also the right shot.
Similarly, in my report on the public inquiry into Bristol Royal Infirmary almost 20 years later (Learning from Bristol) we recommended an end to the current system of clinical negligence as the means of addressing the financial needs of those harmed in the course of medical treatment. The recommendation was one of the very few not accepted by the government. The then-Lord Chancellor’s Department had responded when I consulted them that “We believe in blame.”
I have spent much of my career concerned with policy relating to healthcare. Getting it right for patients and professionals has been an abiding passion. As a lawyer myself I have seen from the inside the stranglehold that lawyers exert over a system that should be putting the interests and needs of patients first. The introduction of a radical alternative to the outdated, arbitrary and scandalously expensive system of clinical negligence remains one of the few bits of unfinished business for me.
Currently, if a patient needs financial support as a consequence of what went wrong, apart from state benefits, the patient must look to the institution and/or healthcare professional. This involves the search for negligence as the only basis on which financial support can be obtained. The patient and their lawyers, therefore, must find someone to blame. The institution/healthcare professional will be keen to defend its/their reputation, save in egregious cases which are settled quietly without the public and future patients being aware.
Those who condemn the current system often call for what they term a “no-fault” system. The expression is confusing and leads to misunderstanding. Knocking out the requirement of what lawyers call “breach of duty” (fault) doesn’t put an end to what lawyers call “causation,” the need to show that the fault caused the relevant harm. This takes us down a rabbit hole of possible causes. Did the actions of the hospital/doctor, though wrong, actually cause the harm suffered? Without the need to argue that it was Martians, lots of sand can be thrown in the patient’s eyes—a machine broke down, the manufacturer caused the harm, blame them; the patient didn’t follow the prescribed regime, the patient caused the harm, blame the patient. The law is already well-stocked with arguments about causation which would do credit to any self-respecting Jesuit. When they are the difference between winning or losing a case, the midnight oil in the Temple would really burn.
So, if the aim is to take the response to medical mishaps out of the legal system, careless talk of “no fault” must be avoided. The correct (albeit ugly) term must be a “no-liability” system—that is, a system that does not depend on the need to demonstrate that someone else is legally liable for a patient’s harm before they can receive financial support. The law of negligence and recourse to the courts are taken out of the equation.
This radical new approach would involve some initial steps. There would be an understanding that in an often highly complex, technologically driven activity (modern healthcare), it is inevitable that things will go wrong on occasion and that patients will be harmed. For that reason, there must be a relentless pursuit of safe care, predicting and eliminating as far as possible any practice that compromises the safe care of patients—the work of the psychologist James Reason (Human Error, 1991) has led the way here.
And of course we require an effective regulatory system to manage the risks involved in healthcare. The system must be based on the accumulation, analysis and sharing of data on all aspects of the delivery of care. Data would lie behind targeted inspections. I was beginning to embed this approach while Chair of the Healthcare Commission (2003-09), having brought in the Cambridge biostatistician David Spiegelhalter (now Professor Sir David). The aim was to replace the old, discredited system of occasional inspection visits to institutions. The Commission was abolished as part of Gordon Brown’s “bonfire of regulation” and replaced by the Care Quality Commission, which reverted to “light-touch” visits, with initially disastrous results.
But the crux of the approach is this: we should separate the needs of the patient from the conduct of the professional/institution.
The patient would receive such financial support as is required, when required (rather than in a lump sum). The money would come from some form of statutorily created fund paid for from general taxation. The fund would be administered according to strict criteria. There would be no need to engage lawyers. Clearly, as with all systems of welfare benefits, rules would have to be developed to exclude so-called de minimis cases and those where the relationship between the harm suffered and a hospital or healthcare professional is too tenuous, but otherwise the system would operate like a publicly funded injury compensation scheme. Estimates of the cost depend on the criteria adopted, but would be nowhere near £80bn.
As regards the healthcare professionals involved in what went wrong, the question to be addressed is whether the professional should continue to work at the particular institution and, if so, under what circumstances (retraining might be required, for instance), which would be for the institution to decide; or whether the professional should be entitled to continue to work at all as a doctor, nurse, or whatever. This would be a matter for the relevant professional body’s disciplinary system.
In the case of the institution, the relevant regulatory body would determine the appropriate response—for example replacement of leadership, special measures, or some sort of amalgamation with another institution.
The separation of the two issues, the needs of the patient on the one hand and the professional’s and institution’s conduct on the other, would mean that the patient would receive financial support promptly. The concurrent analysis of what went wrong would be conducted without the threat of blame and consequent tendency to cover up. Lessons could be learned and shared which would reduce, though not eliminate, further occurrences of harm.
Finally, a caveat: the legal profession would be unlikely to welcome this approach. Would the government, given its promised review of clinical negligence? We’ve waited a long time, but don’t hold your breath!