Almost seven years ago the government stated its intention to introduce a system of fixed recoverable costs (FRC) in clinical negligence cases against the National Health Service (NHS) in England and Wales. Following a period of considerable uncertainty, January 2022 saw the publication of the government's latest consultation on FRC for clinical negligence cases with settlements of less than £25,000. Subject to stakeholder responses, any changes are expected to be introduced in 2023/24.
In order to understand better the proposed reforms and identify current government and industry thinking on FRC in clinical negligence, the Association of Consumer Support Organisations (ACSO) has produced the following report.
Interviews with senior personnel from across the sector helped us understand the impact that FRC will have on consumers. We were able to explore alternative, industry-led models that could increase collaborative practices between claimant and defendant representatives. Interviewees were also asked how they believe the sector is likely to evolve with future reforms.
The key findings of the report are as follows:
- Clinical negligence litigation has received renewed calls for reform to help comntrol the overall cost of cases against the NHS in England and Wales following the Health and Social Care Committee report The Safety of Maternity Services and NHS litigation reform inquiry.
- Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) reforms have helped to reduce the average amount of legal costs for cases valued over £25,000 but similar reductions have not been seen in cases below £25,000.
- Recent years have seen the government shift its focus from claims to how patient safety and learning can be improved. In January 2022, Sajid Javid MP, Secretary of State for Health and Social Care, announced plans to establish the Health Services Safety Investigations Body, an independent, publicly funded organisation responsible for investigating maternity incidents to improve learning to the health system.
- Widespread public support for the NHS and its staff means negligence and how it is compensated for has to be handled with sensitivity and caution, but with the rights and needs of patients put first.
- The proposed introduction of FRC in clinical negligence litigation is a complex issue. A bespoke and streamlined claims handling process if required alongside FRC owing to its heavy reliance on expert evidence.
- Collaboration between claimant representatives, panel firms and NHS Resolution (NHSR) has increased considerably in recent years, partly owing to the covid-19 pandemic. This has resulted in the development of industry-led models and increased cost savings.
Finally, ACSO has made a number of recommendations for ACSO members and the wider sector which aim to protect consumers and improve working practices. These recommended actions are based upon the leading areas of consensus that we identified between both claimant and defendant parties.
- Promote early rehabilitation and efforts to resolve the root causes of harm;
- Embrace technology;
- Continue to engage and collaborate;
- Improve knowledge sharing and promote learning;
- Embrace the most suitable forms of alternative dispute resolution (ADR); and
- Encourage closer adherence to the Pre-Action Protocol for Resolution of Clinical Disputes.
Thank you to the ACSO members and others who contributed to this report. We hope this report and the discussions that it generates will be of lasting value to the sector and those who depend on its services.