Legal claims and the NHS – a shortsighted and expensive new approach?
First things first. We all know that lawyers are as popular amongst the general public as estate agents and tax inspectors. I am a clinical negligence lawyer and therefore the vast majority of my cases are directed towards and against the NHS. For that I probably earn a whole different level of general anger. How on earth can someone take a claim against the NHS?
The reality is very different.
Like most of my colleagues I have been doing this work for a considerable period of time. The vast majority of people who come to me for advice are unable to take a case forward and a good proportion of those are because there is no reasonable merit in a claim. They may have very valid complaints about their treatment but that does not make a legal case.
Most experienced clinical negligence lawyers are selective about the cases that they can take forward to almost the level of obsessiveness. We choose carefully. We may investigate a lot more cases than we take on but we are careful not to take cases where we do not think that we can succeed.
The NHS Litigation Authority or NHSLA (which is the organisation which deals with claims on behalf of the NHS) has a panel of experienced defendant law firms. We have been working together for many years and for the most part up until fairly recently without much difficulty. The NHS had a policy of early admission of fault where it was apparent and clear. Where great harm has been caused by negligent care, there was a policy of making reasonable early interim payments to alleviate the patient’s suffering and to put in place assistance for them for the future. Matters were on the whole sensibly handled. There were always legitimate exceptions where there was a difference of opinion as to whether a case could succeed but often areas of agreement.
This seems to have changed in the last year or so.
Take the example of an interim payment. I have a client who was rendered blind as a result of negligence within the NHS. The negligence was admitted fairly early. The fact that this caused the blindness was admitted in December. This is a young woman with a child who is blind. Of course, I asked for an interim payment in order to put in support services for her. I received no response. I tried again. The NHS solicitor couldn’t obtain instructions. I issued an application for a court order and fairly late on in the process we received an offer of just a quarter of what we were asking for. I might just point out at this stage what we had asked for was considerably less than the full amount to which the client was entitled to by way of an interim payment. It was not an unreasonable amount.
Having instructed a barrister to deal with the application, we received a more reasonable offer. Ultimately the court made its own decision and we were awarded the whole amount. The reason for the delay? The NHSLA’s refusal to act sensibly.
What I find surprising is that while everybody looks at the cost of litigation against the NHS and the criticism for it falls squarely (but unfairly) on the shoulders of patients’ lawyers, nobody is looking at the conduct of the NHSLA. Had the NHSLA agreed to this very reasonable request for an interim payment at the outset considerable funds would have been saved in court fees, my time and the barrister’s time. That doesn’t even take into account the fact that their solicitor also had to spend time dealing with the application and their barrister also. Then there is the small matter of a Judge having to deal with something that could have been agreed long ago. I estimate that £8,000 of NHS money was used in this unnecessarily.
As an isolated example £8,000 in a budget of the NHSLA is probably minimal. But anecdotally all patient lawyers with experience in this area are having the same difficulties.
I am shortly to be the ex-Secretary of the Clinical Negligence Specialist Interest Group of APIL. It is a role I have undertaken for 4 years. In the last year there have been continued and frequent complaints from experienced practitioners about the failures to make interim payments both on account of compensation due to patients and costs that have been incurred. This is a distinct policy shift from the NHSLA it appears. Whilst it could be argued (and no doubt those critical of lawyers would argue) that the issue of costs is a different matter, the issue of interim payments for patients who have been severely damaged and need funds to start rehabilitation is of fundamental importance.
The NHSLA know the firms who are experienced in this area and they know that we have a long history of approaching cases sensibly. Incurring the unnecessary legal costs in matters where we are making reasonable requests is irresponsible. It is not fair on patients. It is not fair on NHS solicitors who have to deal with these matters. It is not fair on the court system that is already overloaded.
The NHSLA is set up to represent the interests of the NHS in litigation. It might be better if someone at the NHSLA took a step back and remembered that the NHS is about patients. These are the people that we are representing and these are the people who need the interim payments. It is not their fault that they have been severely injured by the negligence of NHS employees. The very least that the NHSLA can do is return to the sensible process by which experienced solicitors could obtain interim payments for their clients at the earliest opportunity to reduce their suffering.
Criticism of patients’ lawyers is easy but if you are injured as a result of medical negligence will want it to be dealt with as quickly as possible and for payment to be made to you to alleviate financial and other distress. Sadly the NHSLA feels differently.
Who pays for this waste of time and resources? Well the legal costs incurred are paid by the NHS of course. How on earth does that ever make sense?