Nigel Poole QC, a leading clinical negligence barrister at Kings Chambers, explores the implications of the Department of Health’s proposal to cap legal fees payable by the NHS.

The Department of Health’s proposals for fixed recoverable fees in clinical negligence claims for damages up to £25,000 have been met with a sigh of relief by some in the legal profession: they could have been so much worse.

Neil Sugarman of the Association of Personal Injury Lawyers gave a “cautious welcome” to the proposals and said that “a fixed fee regime for more straightforward cases could be workable.”

The legal profession is in danger of missing the point.

The fact that the proposals are less draconian than feared does not make them acceptable. The fact that they are workable for the profession does not make them just for patients and their families.

Fixed recoverable costs certainly have an important role in the funding of litigation. The hourly rate system of charging rewards the inexperienced and inefficient above those who are able to do the same work at a higher standard and in less time. But a fixed recoverable costs regime has to be fair, it has to reflect the particular features of each area of litigation, and it has to allow proper access to justice.

The Department of Health’s proposals single out clinical negligence litigation for harsh treatment and will restrict the ability of patients and their families to hold the NHS to account in some of the most serious cases.

There are four main objections to the proposals:

  • They will have a significant, adverse impact on bereaved families.
  • The fixed costs proposed ignore the particular features of clinical negligence litigation.
  • It should not be the role of the Department of Health to restrict the recoverable costs of those making claims against it.
  • The proposals are ill-timed given the ongoing investigations by Sir Rupert Jackson and by the National Audit Office.

The Impact on the Bereaved

Jeremy Hunt has accused “unscrupulous” law firms of “creaming off” unreasonable costs. He appears to disregard the fact that a claim for costs is not the same as an award of costs, that recoverable costs include items such as court fees and VAT that flow back to the government, and that claimant’s lawyers, unlike defendant lawyers, do not get paid a penny for those cases that do not result in an award of damages.

There is an even more fundamental misunderstanding at the heart of some of the allegations that costs are disproportionate to damages. General damages for personal injury are based on convention. They are intentionally set at a low level so that no-one would swap the injury for the compensation.

A broken arm, unlike at written-off car, does not have an objective monetary value. Comparing general damages for an injury with the legal costs of the claim is not comparing like with like. And the comparison is even more inapposite for fatal claims.

The government sets the level of damages for bereavement, currently at £12,980. No-one suggests that £12,980 is fair compensation for, say, the death of a child. Asking whether legal costs are higher than the bereavement award is the wrong question. Ask instead whether the legal costs are proportionate in a disputed claim about an avoidable death.

The NHS is a cherished institution but mistakes are made, sometimes negligent and sometimes fatal. Total recoverable damages for the death of a child under 18, an elderly patient or anyone who has no dependants, will often fall below £25,000. Are their deaths less worthy of full investigation than others? Under these proposals many bereaved families will have much greater difficulty in holding the NHS to account.

There is no entitlement to public funding for bereaved families at Inquests into the deaths of NHS patients. The government will fund legal representation for the hospitals concerned, but not for patients’ families.

Sometimes lawyers will agree to act for families at Inquests if there is a prospect of recovering at least some of their costs in subsequent civil litigation but, under these proposals, that prospect will be removed. There is no provision for Inquest representation. The proposed cap on pre-action costs is £3,000 whether the claim is for a missed diagnosis of a scaphoid fracture or the death of a child.

The Particular Features of Clinical Negligence Litigation

Clinical negligence is difficult and expensive to prove. The Courts apply the so-called Bolam test. A doctor is not negligent if he or she has acted in accordance with a responsible body of professional opinion, even if the majority of their peers would have acted differently.

A claimant must rely on expert evidence to prove negligence. Likewise with the issue of causation. By definition, claimants were injured or ill before the clinical negligence occurred. Thus, they have to prove that their outcome is worse than it would have been without the alleged negligence.

Even experienced clinical negligence lawyers cannot know the merits of a claim until they have obtained expert reports, scrutinised them and tested them in conference. Even then, they would need to see the other party’s expert evidence before they can take a firm view of whether the claim would be likely to succeed at trial.

The NHS Litigation Authority (“NHSLA”) – the body responsible for defending claims against the NHS – clearly thinks that way too. It will often insist on seeing a claimant’s expert evidence before making any offer to resolve the case.

Clinical negligence claims require a great deal of investigation and expert evidence before it can be known whether they are likely to succeed. The proposals appear to pay no heed to this feature of such litigation. A total of £7150 is proposed for recoverable costs even if the case goes all the way to trial.

Another difference from most other civil claims is that the NHSLA does not operate like a commercial insurer. Generally it does not take a commercial view of a claim. There are not many fields of litigation where claimants have to wait sometimes 6 to 9 months for a response to a Letter of Claim. That is not necessarily a criticism. It is a reflection of the complexity of the litigation, the need for expert evidence and the way in which the NHSLA operates. Those are all factors that need to be taken into account when formulating a fixed costs regime.

The Role of the Department of Health

It strikes many observers as objectionable that it is the Department of Health that has made these proposals. The Department is, after all, ultimately responsible for negligent errors within the NHS. Should the very body that is answerable for most clinical negligence claims be making the rules about what costs claimants can recover? Should motor insurers be allowed to restrict the recoverable costs in road traffic claims or local authorities limit recoverable costs for tripping accidents?

The Ministry of Justice would usually introduce legislation affecting access to justice and the rules of litigation. If these matters are left to other government departments then who holds the balance between claimants and defendants? And who ensures that the rules applying across all fields of litigation form a coherent whole?

Timing

Lord Justice Jackson is midway through his investigation into a regime of fixed recoverable costs for all civil claims for damages up to £250,000. He is consulting around the country and has a team of advisors representing many different stake-holders within the civil litigation system.

His aim is to produce a coherent set of proposals that would include clinical negligence litigation. The Department of Health has chosen not to await his report but instead to single out clinical negligence for special treatment.

The National Audit Office (NAO) has also begun an investigation into the conduct of the NHSLA and the Department of Health. It plans to publish its report this summer. It will,

“ … examine whether the Department of Health and the NHS LA understand what is causing the increase in clinical negligence costs, and evaluate their efforts to manage and reduce the costs associated with clinical negligence claims.”

The Department has chosen not to wait for that report either. No matter that the NAO might criticise the management of patient safety within the NHS, or the way in which complaints and errors are investigated and resolved. Forget the prospect of findings that the NHSLA’s own conduct has contributed to the rise in litigation costs. Instead the Department has focused its attention, pre-emptively, on one issue: claimant’s costs.

Claims against the NHS serve more than one purpose. They compensate those who have suffered avoidable harm, and they hold those institutions responsible to account. In the wrong managerial hands that can risk a descent into defensive medicine.

With proper management, the appropriate response to being held to account is to improve systems delivering care and treatment. By restricting the ability of the bereaved and injured to hold the NHS to account, the Department of Health risks doing not just them, but the NHS itself, a huge disservice.

The consultation closes on 1 May 2017. Anyone wishing to respond should visit the Department of Health’s website.

Nigel Poole QC, Kings Chambers


 

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