NHS litigation

ACSO responds to the DHSC consultation on fixed recoverable costs for lower value clinical negligence claims

Posted on Mon, 25/04/2022

The Association of Consumer Support Organisations (ACSO) has responded to the Department of Health and Social Care (DHSC) consultation on fixed recoverable costs (FRC) for lower value clinical negligence claims. 

Rachel Cairnes, ACSO's senior policy and public affairs advisor said: "The cost of litigation and its impact on the financial stability of the NHS should be viewed in the context of sharp increases in its overall budget. Since it was established in 1948, the NHS has seen average annual budgetary rises of 3.7 per cent. Moreover, in 2020 the public healthcare spending proportion of UK gross domestic product (GDP) rose to around 12.8 per cent, from 10.2 per cent in 2019. On 6th April 2022, the Health and Social Care Levy came into effect which will raise a record £36 billion to be invested into the UK health and social care system. This will see the NHS resource budget increase to over £160 billion in 2024 to 2025. Given population increases, demographic changes, healthcare demand, inflation and overriding, cross-party sentiment, there is little doubt it will rise further still in future.

"The increasing NHS budget comes as overall public satisfaction with the NHS fell to 36 per cent, an unprecedented 17 percentage point decrease from 2020 and the lowest level of satisfaction recorded since 1997. This is likely due to long waiting lists for treatment, which are forecast to reach 9.2 million by March 2024, which would translate to roughly one in six people in England waiting on their healthcare treatment.

"This represents the backdrop to the government's latest proposals, and so while the cost of litigation is not inconsiderable, it amounts to a small fraction of the overall cost of the NHS budget. As the consultation document outlines, the cost of clinical negligence claims has risen from £582 million in 2006/7 (or £859 million in 2021 prices) to £2.2 billion in 2020/21. These costs are significantly lower than the estimations made by the National Audit Office in 2017, which expected NHS Resolution's annual spend on clinical negligence claims to be £3.2 billion by 2020/21.

"In discussing the impact of litigation against the NHS, and that this therefore means it must somehow be reduced or eliminated entirely, one may forget that individuals or groups claiming compensation have suffered considerable, sometimes life-changing harm. If that is the case, then widespread affection for the NHS should not mean it is immune from criticism.

Cairnes continued, "To prove medical negligence, the burden of proof lies with the claimant and is considerable. For this reason, ACSO members who take on clinical negligence work will reject approximately 90 per cent of the potential cases they are approached with by consumers. Of the cases that are pursued, a similar proportion - approximately 90 per cent - are successful. These numbers reflect the significant harm that claimants and their families have suffered as well as the determination their representatives have not to pursue cases that are unmeritorious.

"The reviewal and rejection of potential clinical negligence claims requires a substantial investment of both time and resource by claimant law firms. This filtering process ensures that only cases with genuine prospects are investigated and provides a form of reassurance to consumers. It also delivers a saving to the NHS by only submitting cases that are believed to have genuine merit. The implementation of the FRC proposals could result in this service becoming unaffordable and, in turn, lead to an increase of unmeritorious claims from unskilled litigants in person.

"Under the proposals, ACSO is concerned about the commercial viability of processing claims worth under £25,000. According to Professor Paul Fenn, an estimated 64 per cent of claims settle for under £25,000, thereby representing a significant proportion of the clinical negligence market. Claimant firms will be less inclined to accept 'borderline' and complex low-value cases on the basis that it would not be commercially viable to investigate them. Without access to skilled and experienced representation, claimants will not be fully advised on how best to progress their claim. This risks conflicting with the tort law principle of putting the claimant, as far as possible, into the position they would have been in had the negligence not occurred. 

"While we welcome the government's intention to conduct a post-implementation review of any FRC regime, further clarity is needed on when this review would take place within the subsequent five-year period and by whom. It is essential that this review takes into consideration the views of a wide range of stakeholders to understand whether the overall aims of the policy have been met, if the policy has been implemented effectively and if any unintended consequences have arisen. ACSO and its members would be pleased to contribute further evidence and guidance as required."

ACSO members can download the full consultation submission from the members' area of the website.