Clinical Negligence Reform: Preventing Harm Must Come First
Clinical negligence costs are once again in the spotlight, with the Government seeking to reform the system and questions being raised about how the current system can be more sustainable. In September, the Association of Personal Injury Lawyers (APIL) published its own proposals for addressing clinical negligence costs while preserving access to justice. A main point is that in order to reduce the costs of clinical negligence, we should also examine why patients are being harmed in the first place.
APIL put forward three key areas: reducing avoidable harm, increasing transparency when things do go wrong and improving the efficiency of the claims process. These concepts are relevant because if the debate begins or ends solely on the cost of compensation to those injured by clinical negligence, it could easily be that we focus on the financial consequence instead on the events that led to it.
Clinical negligence damages are not awarded just because a treatment has had an undesirable outcome. Negligence and a causal link with that consequence must be proven, and compensation is intended, as far as money can achieve it, to address the consequences of the harm suffered. APIL argues that preventing avoidable harm should be at the heart of any effort to reduce the overall cost of clinical negligence. As both an aesthetic nurse and expert witness, I think there is considerable logic to that approach.
Expert witnesses become involved after events have occurred. We look at the clinical evidence and consider the standard of care and, if instructed, causation. However, cases can also reveal recurrent areas of clinical risk and be an opportunity for learning. If similar failures continue to arise without changes to practice, the system is responding to harm rather than preventing its repetition.
Learning from harm has to lead to change
APIL calls for robust mechanisms to ensure that when harm occurs, relevant lessons are identified and shared so that the same problems are less likely to reoccur. Identifying what went wrong is only useful if that knowledge influences future practice.
A serious incident can highlight a weakness in a clinical pathway, communication, supervision, documentation, escalation procedures or training. Addressing that weakness may protect future patients. Failing to do so creates the possibility that a preventable pattern will continue.
These principles are not confined to the NHS. In independent healthcare and aesthetic medicine, reviewing complications and adverse incidents should be an important part of clinical governance. The purpose should be to look not only at who was responsible, but to ask what can be learned and if systems or clinical practice need to change.
Transparency and accountability
The second part of APIL's proposal concerns what happens after harm has happened. They argue that patients and families can be left without sufficient explanations and feel that pursuing a clinical negligence claim is the only way to understand what occurred.
The statutory duty of candour exists for an important reason. When something has gone wrong, openness should not be seen as an optional courtesy or become relevant only when a complaint or legal claim is anticipated, because patients need clear information about what has happened to them, everything that is known, what is uncertain and what will happen next.
Good communication cannot undo an injury, nor will it necessarily prevent litigation where negligent harm has occurred. But a system in which patients struggle to obtain answers risks adding further distress to an already difficult situation. Transparency and accountability should be viewed as part of patient safety rather than simply part of claims management.
A more efficient claims process
APIL's third area for reform concerns the efficiency of the legal process itself. According to their September proposals, the time taken by NHS Resolution to settle clinical negligence claims has increased significantly since 2013/14. Lengthy disputes can delay compensation and rehabilitation for injured patients while also increasing legal costs. There is clearly a legitimate conversation to be had around efficiency.
Earlier investigation, better compliance with the Pre-Action Protocol for Clinical Disputes, meaningful communication between parties and appropriate use of alternative dispute resolution may all help cases progress more effectively, but improving how claims are handled is fundamentally different from reducing access to compensation. If reform is intended to control costs we need to be clear about which costs we are trying to reduce and how. Preventing avoidable injury reduces the need for claims in the first place. Resolving legitimate claims more efficiently can reduce unnecessary delay and expense. Neither requires us to diminish the principle that a patient who has suffered harm by negligence should receive appropriate redress.
Clinical negligence reform inevitably involves difficult questions about affordability, accountability and access to justice. There will be different views on how the system should change, but APIL's proposals raise a point that should not become lost within the financial debate: a clinical negligence claim is not started by a compensation payment, it begins with an allegation that a patient was harmed because the care provided fell below an appropriate standard.
As an expert witness I work at the point where those events are being examined retrospectively. There is considerable value in doing so fairly and objectively. If the aim is a safer and more sustainable system, reducing avoidable harm, learning when things go wrong and resolving legitimate claims efficiently should not be competing objectives but central to the same conversation.