A recent report from the National Audit Office kicks off the perennial debate about how much of the NHS budget has to be allocated to payment of compensation and costs arising from clinical negligence claims.
We've looked at this in past years when Kenneth Clarke was in charge of the anti-lawyer rhetoric – boosting it with some, at best clumsy, distortion of the actual figures. See Repeat prescription and Legal highs.
The explanation and the very important message doesn’t change. It’s perfectly simple. Stop making mistakes and we’ll save money as well as a great deal of heartache.
Within any litigation portfolio will be an element of costs generated by failed claims, but it is the thin end of the wedge. In the main we are talking about the cost of successful claims – proceedings that our courts, applying the law of this country, consider justified and worthy of compensation awards.
The people applying the law are ultimately the judges we appoint to decide cases on the principles that our society has adopted and the lawyers within the industry who in many situations settle cases with the benefit of understanding what the court will probably decide if they don’t.
There are two ways to save money. One is not to foul up in the first place. The other is not to play brinkmanship after you do.
Plenty will say it shouldn’t be like this. What do they think has to change? As ever the same ‘culprits’ will be brought under the spotlight and given a kicking.
It isn’t the rapacious ‘fat cat’ lawyers on conditional fee agreements who make the rules for their own benefit and exploit them to milk the service – as politicians and insurers would have everybody believe.
Awards are made and deals done according to the law of the country.
If we can’t or won’t improve the standards of performance within our health service, then another way of reducing claims and cost is to drop the bar - lower standards.
Instead of an objective evaluation of what could and should be achieved or avoided, we replace that with some sort of quota system. The population of this country agree, for example, that one in five, ten or however many serious birth defects, is an acceptable fail rate.
Then when somebody makes a claim, all the health service has to do is to point to the statistics, say ‘we’re within quota’ and that’s it!
'Awfully sorry it happened to your child but, you know, we can’t get it right all the time. It’s just tough. It’s better here than in some other places in the world.'
Is that where we’re going? Is that what this country wants?
If so, we should get on and implement something along these lines so that all those who think it is a better state of affairs than compensating innocent victims can have their way and stop whining about the costs. Those of us who think it isn't good enough can see exactly how the land lies and make some life decisions (like move to another country with higher standards and aspirations).
If our government is going to do something to this effect, then it needs to do it by democratic process and parliamentary debate.
It shouldn’t be done by emasculating the lawyers, whether though another assault on evil no win, no fee “ambulance-chasers”, or draconian rules drawn up by committees steered by liability insurers and their legal champions to block access to justice - to seemingly preserve standards but put them beyond reach.
Perhaps there is hope yet that we can retain some dignity and continue to lead the way here as elsewhere. Amongst the comments on the latest statistics, the words of the Public Committee Chair, Margaret Hodge, give us some cause for optimism:-
‘The department needs to buck up and take responsibility for this. It needs to review its monitoring and reporting process to ensure that all relevant bodies can work effectively together to deliver maternity services that are value for money and fit for purpose’.
That ‘value for money’ bothers me slightly, not that I think we should be oblivious to the cost. But if we spent as much as we do cleaning up on making sure that we are properly managing competent people who have an understanding of the true value of human life, that would be money well spent.