I see that
another debate has kicked off about how to make savings in the NHS, efficiency
expert Lord Carter concluding that up to £5 billion could be found. I don’t
know the merits of that and the true potential.
In principle it’s a perfectly valid discussion to have – as long as one
keeps an open mind to the possibility that it’s further investment, not cuts,
that we need.
It won’t be long before the old cracked record comes out of its
sleeve and we are being told that the biggest drain on the NHS is the army of
“ambulance chasers” and “fat cats”. That will be lawyers acting for victims of
clinical negligence.
In this country
we have, and have had for hundreds of years, laws that require (put in very
simple terms) people who act carelessly to compensate other people who are
injured and suffer loss as a result. We all fall into error during the course
of our daily life, often without any dire consequence.
Sometimes, though, it happens whilst we are driving a vehicle, operating machinery or performing some other skilled task. Acts of Parliament and other subordinate legislation define and refine the standards that must be met as well as prescribing in many instances insurance to meet awards of compensation – and dare I say it, victims’ costs.
Sometimes, though, it happens whilst we are driving a vehicle, operating machinery or performing some other skilled task. Acts of Parliament and other subordinate legislation define and refine the standards that must be met as well as prescribing in many instances insurance to meet awards of compensation – and dare I say it, victims’ costs.
All this doesn’t
exist just because somebody thinks it a fine idea for the sake of it. It is not there to create an industry – to
feed “fat cat” lawyers. It exists, as should all our laws, for moral and humane
reasons.
One is that we are
(or were) a caring society that helps those who have been the unfortunate
victims of somebody else’s error, rather than simply shaking our heads, pursing
our lips and leaving them to get on with it.
Just as - if not more - important is the deterrent effect, to put it in
blunt terms.
Positive aspects
of every misfortune are that it is a reminder of the risk and potential
consequences – a prompt to be more careful next time. We don’t rely on the wrong-doer’s
conscience alone, though in many cases that will be the most powerful control of
future behaviour. Awards of compensation
not only help the victim but also hit institutional culprits where it hurts,
where it will make them think again.
Even if they
have insurance, there will be an effect because those underwriting the cost
will by various means require better standards of behaviour in future as well
as upping the price of what they provide. Of course insurers, particularly
those in the road traffic market, don’t see better behaviour as the only way
forward. They will fight by any means to
avoid paying compensation – which achieves neither of our society’s aims (above).
Often, and quite
rightly, they lose and have to pay more.
Then they whinge and want the law changed. They are about to have some startling success
with their friends in the current government - but that is another macabre tale…
So, back on the
ward, how do we save money? Well, I have
two suggestions.
Before I tell
you, here is a clue to what they might be.
Ask yourself why in any particular case, the NHS should have to pay
compensation to somebody who claims they have been the victim of clinical
negligence and costs to their lawyers. Is it as simple as somebody coming out
of the hospital, accusing the medical professionals of carelessness and
demanding huge sums of money?
If you are
struggling with that last question, let me help you also with the information
that the laws are applied by courts staffed by judges who are generally quite clever
and more to the point independent and objective people. Contrary to what liability insurers might
suggest to you, they are able and willing to sift out weak and dishonest claims
- if they get that far.
Guess what
happens to the people running those cases?
One thing above all – they don’t get any money, nor do their lawyers – assuming,
as is almost always the case, that they are acting on conditional fee
terms.
Turn that around
and you will understand, if you didn’t already, that money only spills out of
the public purse when a judge decides that it should by law or those defending
the claim see that as the likely end result and sensibly get to work on some
damage limitation.
So the first
solution is prevention – try harder not to cock up in the first place.
I am no more
certain of the recipe for that than all the clever people who have allegedly
worked on the problem before but I imagine it looks something like better
training, improved hours, better pay in some cases, improved performance
management etc.
Oh dear! That’s going to cost money isn’t it? Light bulb moment…that investment may
ultimately save money that we are currently having to pay for messing up. Oh, and there
is another minor benefit of that scenario – fewer people die or have their lives
ruined along the way.
Looks good to
me. It won’t be foolproof, of course,
because nothing and nobody is perfect. But even after the event, we can make things better than they are at the moment.
How? Easy…
What you do is
inspire, failing that order, those handling claims on behalf the NHS to act
sensibly, to promptly admit fault where they should and agree reasonable sums
of compensation. The most disarming
response in most situations where a person is angry at another for what has happened
to them is for the wrong-doer to stick their hands up and say “sorry”.
That is not all
of it, because people still need to be compensated according to the moral
standards that we maintain in our society – but it is a damn good start!
The National
Health Service Litigation Authority (NHSLA) is famed for not doing this. Just recently we have seen a reported case
where the NHS has been penalised for refusing to sit down and talk, to
participate in mediation.[1]
That's a
damning indictment of itself but here is the sickly icing on the rotten cake –
the judge (quite correctly) hit them with an enhanced costs order so they have
had to pay even more to the innocent victim.
This is just
dumb.
Meanwhile, the government is
after a placebo, not a cure. In clinical
negligence claims, the current thinking is to fix and cap costs of lawyers
acting for the victims.
“Surely that is a good thing?”
you may be asking yourselves. That is going
to cut down the costs paid in successful cases (i.e. where the claimant
deserves it) because there must be (yes there are) some unscrupulous people
including lawyers intent on milking the situation.
But we already have a system of
costs assessment – always have had - which means that, just like the claim itself,
if the defendants think they are being taken for a ride then they force the
argument before a judge who will limit the payment of costs to what is
reasonable and if appropriate award the defendants their costs of bringing the
argument to the court.
It has already become much more
restrictive than it used to be. For
eleven years, we had a very clear statement of principle handed down by the Court
of Appeal in 2002[2]
about the need for costs to be proportionate but carving out an exception where
obstructive behaviour by defendants generated what would otherwise have been
unnecessary additional costs. In other
words, if defendants mucked around and kicked up a fuss rather than focusing on
resolution of the claim, they could expect to be ordered to pay for all the extra
time and money wasted as a result.
Even that has gone now. New rules on proportionality basically say
that the court can scrutinise all the elements of the claim for costs, decide
on a sum that is reasonable and then slash it in half or more simply because it
is out of proportion to the value of the claim.
So why bring the claim if it is
going to cost, say, twice or three times the value to pursue it? Assume that it
is a perfectly good claim but those costs are generated because the defendants
simply won’t face reality and get it resolved at an early stage.
You may say that the sensible
thing for the claimant to do is to give up, perhaps even before they have
started. That is of course exactly what
the insurance industry and major institutional defendants like the NHS want to
happen.
We are set to go a stage further
now with a scheme of fixed costs. “Fixed” doesn’t necessarily mean
“unreasonably low”, of course but I will wager that is where we get to.
Many lawyers will remember the
initial levels of costs within the portals
for dealing with low value road traffic claims, negotiated by agreement between
the two sides of the industry and felt to be fair to both sides.
Subsequently the insurance
industry pumped up the level of referral fees that they were trousering for
handing some lawyers cases to run against them, then said that most of the
fixed costs went on referral fees, rushed round for an exclusive clandestine
huddle with Mr Cameron and chums in Downing Street and had the figures slashed
by more than half.
Such is the way, generally, that
the law is now being manipulated in this country. Whether it is to the financial benefit of,
initially, insurers or the government the response to the cost of misfortune of
innocent victims and mismanagement of claims is to try and deny them justice.
Such is the culture within the
NHSLA at present. We don’t care if we
ruined your life and/or the lives of your family and friends and we don’t much
care if it happens again. We are not
paying you.
If the only way to ensure that is to
kneecap the lawyers who will otherwise force us to pay for our mistakes, then
that is what the government will do.
Silence the critics, so we don’t
have to answer to them.
