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Government moves to cap rising clinical negligence costs

Proposals include a limit on legal fees in claims up to the value of £25,000

Mark Gould

Friday, 16 February 2018

NHS managers and medico-legal experts have welcomed the government's decision to launch a consultation on introducing a cap on costs in low-value clinical negligence claims.

The Department of Health and Social Care (DHSC) has published its summary of consultation responses to its consultation on introducing fixed recoverable costs (FRC) in cases up to the value of £25,000 in a bid to check the soaring cost of litigation in the NHS.

The DHSC has set up a group of experts, including GPs, who will report back with a firm proposal in the autumn after taking evidence from interested parties.

Niall Dickson, chief executive of the NHS Confederation, which represents organisations across the healthcare sector, has been calling for a major reform of the handling of clinical negligence claims. He said the latest announcement was, "A step in the right direction.”

"It must surely be fair to cap the amount lawyers can charge for their costs, and we welcome the decision to set up a group to work on this - we trust that the government will act quickly on its recommendations."

Mr Dickson said the Confederation was also pleased that ministers have signalled their determination to tackle the wider issue of clinical negligence claims. "The rising cost is now unsustainable and already means that vast resources that could be used by the NHS are being diverted elsewhere.

“We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay. Money that is used for this purpose cannot be spent on frontline care.

“We also accept that the greatest prize is safe care – no health system can eliminate mistakes but the campaign to put safety at the heart of the NHS is critical. The irony is that excessive claims and a blame-first approach undermines the open and learning culture which is so important for safe care.”

Chris Kenny the chief executive of the Medical and Dental Defence Union of Scotland (MDDUS) which indemnifies doctors across Britain said: “We are relieved to finally see progress on this important project, given that the Department had committed to having a fixed recoverable costs (FRC) scheme in operation by October 2016.

“We are pleased to see that the Department remains committed to delivering a FRC scheme and that the proposed working group is intended to publish recommendations by autumn 2018. Timescales on this cannot be allowed to slip further and we hope for a speedy implementation by the government thereafter.

Mr Kenny said the MDDUS welcomed the recognition of the importance of including GP representatives on the defendant side in the working group and look forward to engaging with the Department on this important project.

“In order to have a real impact in terms of reducing the burden on the public purse, FRC is but one aspect of the necessary package of tort reform measures. As highlighted by the National Audit Office (NAO) report in September 2017, Managing the costs of clinical negligence in trusts, there is a need for an integrated approach and this is undoubtedly a key area for development."

But he has doubts about the proposed amount of the cap, “We remain of the view that a cap of £250,000 is both necessary and proportionate. The report also shows that the arguments in favour of a cap in excess of £25,000 have been well made. We look forward to discussing these points in more detail as part of the working group.”

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