NHS Clinical Negligence claims – should the UK move to a ‘no fault’ New Zealand system?

By Nick Scott

INCREASING clinical negligence claims on the NHS over the last decade – and their subsequent cost to the public purse – has prompted questions over whether the health service needs radical reform in this regard.

With compensation in the year 2020-21 valued at £2.2 billion, increasing from £582 million back in 2006, the Health and Social Care parliamentary committee has described the current system as “not fit for purpose”.

It has been widely acknowledged that the increased cost of compensation can be partially attributed to the fact that the UK has not effectively implemented a learning healthcare system.

Discussion of reform has led to the suggestion that a ‘no fault’ system, modelled on the compensation scheme in New Zealand, should be adopted in the UK.

In a ‘no fault’ system, it is not necessary for a patient having suffered injury to establish negligence in order to receive compensation and in turn, patients are then prevented from suing for damages.

It is widely considered that this approach is more compatible with a learning healthcare system as a result of the reduced risk of litigation. It has also been acknowledged that, by instituting an administrative body to determine compensatory damages, the stress of litigation is removed from the process of receiving compensation.

The unprecedented cost of clinical negligence claims on the NHS, both in legal costs and compensatory damages, is not financially sustainable, and significant change is urgently needed.

However, the ‘no fault’ system of New Zealand is not without issues. One key concern is that the adoption of this system would reduce the value of compensatory damages to injured patients. If the damages currently offered are fair and proportionate, covering the wide-ranging long-term impact of injury, then it would be unjust to adopt reforms that reduce this compensation. It is clear that this approach should be avoided until alternative options have been fully explored.

The central argument for adopting a ‘no fault’ system is based on the idea that current structures surrounding clinical negligence claims are not compatible with a learning healthcare system.

However, many of the most impactful aspects of the system in New Zealand relate to a data-led approach which is not intrinsically tied to a ‘no fault’ system.

By exploring ways in which a data-led approach could be implemented alongside the current system there is a key opportunity to retain the core aspects of the UK’s robust and proportionate model for compensation whilst adopting a systems-based approach to mitigating clinical risk.

The dataset available from clinical negligence claims provides the opportunity to target resources at areas that most frequently give rise to these claims and identify steps to reduce the risk of similar incidents reoccurring

One route this could take would build on the success of the WHO Surgical Checklist approaching a clinical setting as a system. The list is widely acknowledged to be successful due to the fact that it engages stakeholders in relevant considerations at a critical point in the patient journey.

In the context of reducing the cost of clinical negligence compensation on the NHS, data could be used to establish the points in a patient journey that most frequently give rise to clinical negligence claims. A checklist could then be implemented with clear steps to reduce the risk of clinical negligence from a systems standpoint at high risk points in the patient journey.

By first identifying the points that give rise to highest frequency of claims, the scope of these checklists could be clearly defined in the same manner as the WHO Surgical Checklist.

A solution of this form is necessary as a cost-effective approach is needed to reduce the financial burden of clinical negligence claims on the NHS.

The process of creating an administrative department to handle compensation for patient injury would undoubtedly carry substantial costs. On the other hand, a systems-based approach which prioritises resolving the highest frequency claims would significantly reduce the unsustainable and damaging financial burden of these claims on the health service.

The issue of unprecedented and increasing compensation costs is an emergency for our healthcare service and in the urgency to resolve this issue there is a risk that the safety net of a robust system for compensation is compromised.

The suggestion of replacing this system with an administrative body to determine compensatory damages carries with it substantial risk. It is therefore crucial that the first steps in resolving this issue involve exploring the effectiveness of a data-led approach to establish whether this is compatible with the current proportionate and fair compensation system.

Nick Scott is a content writer and a law student.

Featured Image: Tim Green @ Wikimedia Commons

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