In 1948, in a country ravaged by years of war in Europe, a remarkably simple idea was born. Doctors, nurses, and hospitals would come together under one umbrella, to provide health care, free at the point of delivery, to every citizen of the United Kingdom, regardless of their means. It was to be financed by a levy on every working citizen, called the national insurance stamp.
What we call ‘the National Health Service’ today is made up of a complex range of organisations with different functions and responsibilities that have been turned into a political football that neither Labour nor Conservative politicians are prepared to speak the truth about.
One of those functions is to pay compensation to those who sue the NHS for ‘poor service’. This can range from life changing surgical mistakes, to those who consider that the receptionist in A & E has been ‘rude and off hand’ or they have had to wait too long. We expect the NHS to behave like Ryanair, or Vodophone, or other profit-making enterprises, and if it doesn’t give us exactly what we want, in a timely manner, then we pick up the phone to a lawyer, and expect compensation.
That is not to minimise the devastating effect that mistakes by Doctors or nurses can have. I have personally been the ‘victim’ (though I hate that word!) of acts of medical negligence for which I could have sued the NHS – but doing so would not have changed the fact that my body was damaged by those mistakes, it would only have ‘fined’ the NHS budget – and ensured that the NHS was even shorter of money than it is.
This year the Department of Health will transfer around £95 billion to NHS England. A staggering £56 billion of that sum is already allocated to the NHS Litigation fund in order to fund compensation claims.
Whilst it is absolutely true that some areas of the NHS are chronically under funded; junior Doctors are under paid, wards are under staffed, access to new drugs is being restricted, waiting times for serious illnesses such as cancer have increased, the ambulance service are creaking at the seams – no politician is explaining to you why £95 billion is insufficient to provide the service that was offered to the British people in 1948.
It was the Blair Labour Government who set up the NHS Litigation Fund in 2000, just as they had set up the many ‘PFI deals’, allowing the costs of activities – the building of hospitals, and, in the case of the Litigation Fund, the cost of claims against the NHS – to move from the government’s accounting system to a discrete external system. Both early examples of the privatisation of the NHS – though not examples that would have been picked up by our slumbering media in the same way that say, the privatisation of an accident and emergency department would have done.
Prior to 2000, each Trust dealt with its own legal matters. Many a conference took place. Meetings were convened across the country to discuss how the new national service was to operate. There will have been training for staff, new paperwork to be printed, job descriptions drawn up, premises to be rented, even the relocation of existing staff.
To give you an example of the sort of jobs available to solicitors working on behalf of the NHS this is fairly typical. The job is based in Birmingham and would involve handling claims up to £1 million. The actual salary is not disclosed, but in addition to the salary you could expect:
Benefits include; Life Assurance (4 times salary), Gym subsidy, Employee Assistance Programme, 25 days holiday entitlement per calendar year increasing to 27 days after 5 consecutive years employment, Childcare Voucher Scheme, Eye care Vouchers every 1-2 years as requested, Private Medical Insurance (Aviva), Permanent Health Insurance / Income Protection, Interest free Season Ticket Loan, Childcare Nursery Scheme, Employer Pension (available at start date, office variations apply).
It doesn’t end there – there will be any number of other positions. Everything from security officers on the doors (to deal with angry clients) on £16,829, to a chief executive on £196,267 plus perks…they all have to be paid for by the taxpayer before they pick up the first claim file.
In November last year, Dr Michael Devlin, from the Medical Defence Union (MDU) said the NHS was sitting on a time bomb. He was referring to the £56.4 billion that the NHS needed to set aside from its annual budget to pay for negligence claims.
These figures reveal the urgent need to make compensation levels more affordable. The NHS is sitting on a time bomb of future claims and legal reform is the only way to address it and to keep money within the NHS for treatment of patients
This is not a problem caused by clinical standards, which remain very high. It is the result mainly of economic pressure and an outdated legal system meaning compensation must be calculated on the basis of private rather than NHS care. This means billions of pounds leaving NHS funds to provide independent sector care for just one person, taking away funds that could be used for other patients, including those with equally serious injuries who can’t prove negligence.
The NHS is hemorrhaging money on claims which it should be able to retain so that all patients benefit. Patients must be compensated but in a fairer, more affordable way.”
Last year, the NHS Litigation Authority (‘NHSLA’) put out a tender inviting solicitors to apply for the job of defending clinical negligence claims against the NHS. The tender was worth a staggering £480, 000, 000.00 over a four-year period – not including VAT! They expected to appoint a team of ten firms of solicitors. There were other tenders on offer for things like employer liability which need not concern us.
In January this year, we learnt that the NHS had paid £70m to parents of disabled babies who say they would have had abortions had they known of the abnormalities earlier. The payments for what are legally termed “wrongful birth” were made by the NHS Litigation Authority over the previous five years.
Andrea Minichiello Williams, the director of the Christian Legal Centre, said: “It is not wrongful that babies are born with disabilities. It is wrongful that taxpayers are funding a culture which sees disabled children as an inconvenience. To say the birth of a child is a ‘harm’ to an individual or family and to use taxpayers’ money to compensate for the harm is unkind; it is not a mark of a civilised society. It sends out the wrong signals.”
The bulk of the payouts were to parents who claimed that antenatal screening failed to warn them of the risk that their baby would be born with a disability. The parents argued that had they known their child had a high chance of being born disabled, they would have undergone a termination.
Is that really what we set up the NHS for? To compensate parents who ‘would have’ aborted their child if they had known that there was a ‘high risk’ that the new addition to their family might be disabled? That £70 million would have paid for many more hip operations for elderly patients in acute pain. You won’t find a politician of any hue prepared to say so.
It is in the field of Obstetrics that the majority of high value claims are occurring. The Royal College of Obstetricians and Gynaecologists (RCOG analysed a October 2012 report from the NHS Litigation Authority which showed the 10 years from 2000 when the Labour Government set up the Litigation Fund through to 2012 when the coalition government had been in place for two years.
In that time, there were 5,087 maternity claims costing a total of £3.1 billion pounds from approximately 5.5 million births. This was less than 1 in 1000 births ending in litigation.
Most births are a natural process but some mothers and babies require medical attendance during and after delivery. The cost of fully staffing the maternity units would be around half the cost of litigation each year and would reduce claims considerably.
The NHS LA report is staggering in its stark facts and the reality of the enormous costs of maternity litigation. Hidden behind the financial burden are countless stories of tragedy to individuals and families. However, it is important to remember that not all cases of say, cerebral palsy, result in a claim and significant payout for lifetime care. For some parents, cerebral palsy is caused by a brain malfunction during the gestation period – and yet that child will have the same ‘needs’ as a child whose brain was damaged during the birthing process.
One child is treated as ‘unfortunate’, one is treated as a ‘faulty product’ of the NHS and may receive up to £6 million and more in compensation.
Both will be entitled to ‘free’ care from the NHS. Having received compensation based on the cost of private care – there is then no obligation to use private care – they can bank the money and take up their entitlement to NHS care in the same way that everyone else does. NHS care is not means tested. It is free at the point of delivery to everyone — even those who have just sued the NHS claiming that they need private care! The tax payer pays twice over.
Let me give you an example of what happens to that money that is handed over in compensation. ‘Duaine’ was just such a child born with cerebral palsy. There is no doubt whosoever that his needs are considerable.
“Duaine cannot talk and uses a communication board with pictures and an iPad for very basic communication. He cannot walk but can mobilise a little by crawling. He is completely dependent on others for feeding, bathing and all personal care matters. He is incontinent and wheelchair dependent. He is also severely cognitively impaired and during the litigation it was said that his understanding is zero. He also has epilepsy but this has been well controlled on medication for the last seven years. During the litigation it was stated that he has a normal life expectancy.”
Duaine received £3,100,000 in compensation from the relevant Health Trust when it was agreed that Duaine’s condition did not result from a brain malfunction whilst he was forming in the womb, but from an act of negligence in the maternity ward when he was born. 30 years later, Duaine still had £3,100,00 sitting in the bank and the question before the court was where should this money go when Duaine died? The answer proved to be that his mother would have a life interest in the house that had been bought for Duaine, and then be passed onto his three brothers; 1% of his estate to Cancer Research, 1% to the Guy’s and St Thomas’ charity, and the remainder of the £3,1 million split between his mother and his three brothers.
Duaine, of course, would have been entitled to a lifetime of free care from the NHS in exactly the same way as he would have been if his injuries had resulted from a malfunction in the womb.
Did suing the NHS change Duaine’s condition in any way? Will his three brothers and his Mother sharing £3,1 million ‘teach the NHS a lesson’ in some magical manner that will ensure that no other baby is damaged in that way? Has justice been served?
It is unfair of me to single out Duaine as an example – he is only one of hundreds of cases brought by personal injury lawyers every year – and the figure is escalating alarmingly.
To the point where the rest of the NHS is starved of funds – which logically will only increase the risk of negligent accidents. Underpaid staff, working on understaffed and ill-equipped wards, are human beings, and liable to make mistakes.
In 2015, the Government suggested that they might take steps to limit legal costs in lower value claims – those up to £100,000. The legal profession was appalled. Some solicitors claimed that the move could deny patients access to justice…you can sympathise with their fears, for instance, where a patient received £11,800 in damages but the legal fees, which the NHS had to recompense, totalled £175,000, a solicitor might not want to take on such profitable cases in the future if the fees were lower….
In 2013-14, the NHS was charged £259m in legal fees by such solicitors. They did complain to the courts and managed to recoup £74m, but that involves using their in-house lawyers to mount a challenge to fees – taking them away from looking into actual claims, so not really cost-effective.
The Health Minister at that time said, Ben Gummer, said: “Unscrupulously, some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.” However, one of the solicitors involved in making claims against the NHS, Terry Donovan from the law firm Kingsley Napley, said that the problem lay with NHS defending claims – if only they rolled over and paid up more quickly……
“This sounds like another massive attack on access to justice for everybody. […] Costs can be very proportionate if the NHS will admit liability promptly when it’s appropriate. […] But defendants drive up costs if they don’t admit liability early on and the case ends up in court.”
We might usefully point out at this time that only 2% of the NHS cases do actually end up in court.
Nicola Wainwright, clinical negligence partner at Leigh Day, also weighed in claiming that a cap on fees for cases under £100,000 would ’cause the victims of medical negligence further misery’ because:
‘It will restrict their ability to claim compensation to cover the costs they now have to pay because of their injuries. […] Nowhere does the government mention its role in causing legal costs to rise. It is within the power of the NHS LA to reduce costs by accepting liability earlier in clear-cut cases, yet they do not.’
Another solicitor who thinks that the NHS – for which read the taxpayer – should roll over uncomplainingly and stop defending claims?
The £56 billion figure works out at £2,217 that every taxpayer must fund to compensate those who can prove that the NHS was at fault in the service it provided.
Dr Christine Tomkins, chief executive of the Medical Defence Union, which insures medics, said: “The NHS is sitting on a time bomb of future claims. Legal reform is the only way to keep money within the NHS for treatment of patients.”
The lawyers won’t point out that part of the reason the frontline NHS is underfunded is that they are earning a good income from suing the NHS.
Politicians won’t point out that part of the reason the frontline NHS is underfunded is because the law allows people to sue for a lifetime of private care and then use ‘free’ NHS care and bank the money – they would far rather tell you that the NHS is short of money ‘because of Tory austerity cuts’, or because Labour ‘left the NHS in a mess’.
The media won’t tell you what the problem is because they no longer have good investigative journalists who are paid enough and have sufficient training to look at boring subjects like the NHS Litigation Fund accounts and tease out the facts until they have a story. I actually had one journalist here this week who was amazed to learn that such documents were online…she asked me to e-mail her a link ‘in case she couldn’t find it’.
The Mail on Sunday is digging into the legal reform necessary to bring this to an end – and will be publishing further articles. The other papers which latched onto the story, The Mirror, The Sun, the Express, and bizarrely ‘The Troon and Angus something or other’, were only interested in the froth – ‘Cancer sufferer standing against Jeremy Corbyn’.
Yet £56 billion sits in the NHS budget which could go to front line services and not end up as part of an estate split up between brothers living in Jamaica or a legacy to a cat’s home…..
Surely that’s not what you are paying your national insurance contributions for – is it?
You tell me.
*Apologies for grammar and spelling errors – I’m writing through a fog of medication after having radio-therapy on my arm yesterday – at least I’m typing with two hands again. I am aware that I’m not up to my usual standard – things will get better, promise. I’m trying to rejig the site too, so that it looks as it used to.