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Fixed costs - a sticking plaster for the NHS?

View profile for John Coulson
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IN a time of concern over health service costs  it is easy to see why it is convenient for the Government to blame  ‘greedy’ lawyers for £1.1bn in pay outs by the NHS for cases where patients have been harmed.

But to adopt such a simplistic approach is to forget the purpose of the NHS and who is exists to serve – sick people who, wherever possible, need compassion and professional care to help them to recover. In many cases patients are, sadly, not receiving the safe, effective service they deserve.

There are currently far too many instances where patients are physically, or psychologically, harmed by those charged with their care. In such cases it is a fundamental democratic right that patients, or their guardians, should have a right to financial redress through British law.

The vast majority of medical negligence or abuse claims are unsuccessful even though a significant amount of time, effort and expense has been spent by lawyers, free of charge, in the interests of seeking justice in behalf of those patients..

Even though this year’s NHS compensation figure is slightly higher than last year, one laudable reason for such substantial sums being paid out is the adoption of a more positive reporting culture in the NHS. Being able to seek redress, or at least an acknowledgement, for harm is often an important part of a victim’s recovery.

The Medical Defence Union, which provides medical indemnity insurance, has pointed out that the compensation could have funded eight million MRI scans. This underlines the fact that this money comes from the NHS healthcare budget and not from a legal war chest.

The Government has said that it aims to put strict limits on the "excessive fees" some lawyers claim in negligence cases. Officials have also called for a defined limit on legal costs in cases where claims are less than £100,000 claiming that some lawyers submit bills of more than patients receive in compensation. Whilst efforts to reduce the financial burden of litigation against the NHS are welcome, a "blame the lawyers" response does not address the real issues or tackle to problems in the current system.

Compensation payments are made only where the NHS is found to be at fault, and, far from being some outlandish figure submitted by ‘greedy lawyers’, legal fees are assessed by the court and are paid only if found to be reasonable.

A significant reduction in the NHS compensation bill could be achieved with improvements in the quality of care and with open and honest admission when errors occur. The legal costs paid in successful cases are often increased because the NHS Litigation Authority have vigorously defended claims for months or years before finally accepting liability.

An improved system to address concerns and complaints at the outset could help to resolve many issues before they become the subject of litigation. Many patients simply want an acknowledgement that they have been harmed, injured or abused and this crystallises into legal action only after NHS staff have brushed their concerns aside, or trivialised them.

Introducing fixed fees may not help as most claims are unsuccessful and are investigated at no charge by lawyers. The proposed introduction of fixed fees might result in patients submitting claims themselves which could multiply the administration tenfold for the NHS Litigation Authority both through the sheer volume of complaints and the lack of clarity over how they are presented. This could ultimately divert, rather than reduce, costs.

It is undoubtedly the case that the NHS faces significant funding challenges. The NHS serves the entire population, lawyers included. It is in the interests of all that funds are well spent and an effective, safe health service is available. Effective steps towards a reduction in the amounts paid for compensation and legal costs may be a part of this solution and should be welcomed by all. Simply blaming the legal profession is, however, a diversion rather than a constructive development.

The Government, NHS, medical defence organisations, the legal profession and patients’ representatives need to consider how society should respond to the injuries caused by the NHS. There is an important matter at stake in this debate and the UK deserves a reasoned and informed discussion.