Tort reform ideas outlined in maternity safety report?

Last week the Commons Health and Care Select Committee published what is likely to be a very significant report examining safety issues in NHS maternity care. The primary focus of the report is improving patient safety by learning from well-documented failings in East Kent, Shrewsbury and Morecambe and the report makes important recommendations on this aspect. A second strand of the inquiry was to review the effect that the current clinical negligence claims and litigation process has on improving outcomes and to consider if changes are necessary. The Committee found that they are and this blog summarises its recommendations on that topic.

The Committee’s report makes two key recommendations under the heading “Reform of the litigation process” that directly address accessing compensation awards and a third which targets the prevailing “blame culture”

20. We recommend that following that review, the Department brings forward proposals for litigation reforms that award compensation for maternity cases based on whether an incident was avoidable rather than a requirement to prove clinical negligence. That approach would allow families to access compensation without the need for the courts in the vast majority of cases and establish a substantially less adversarial process.

The effect of this proposal, if implemented, would be to lower the threshold for accessing compensation for clinical harm by replacing the current negligence test in tort with one based on avoidable harm. Any change of that nature would be a very significant move and a clear step towards ‘no-fault’ compensation. Sarah Woodwark addressed this earlier in the year in this insightful post which reviewed the Minister’s oral evidence to the Committee on this very point and which outlined the pros and cons of such an approach.

21. In addition, we recommend that the Department and NHS Resolution remove the need to compensate on the basis of private healthcare provision where appropriate NHS care is available; and that compensation is standardised against the national average wage to prevent unjust variability in compensation payouts.

Despite its brevity, this is a significant recommendation. It deals with the assessment of damages and breaks into two elements: the basis for making an award for the cost of ongoing care and the capping of loss of earnings awards. The potential impact of these proposals should be immediately obvious given that both heads of loss are likely to be the largest components of a claim arising from serious injuries sustained at birth.

The first element necessitates the repeal of legislation dating back to 1948, under which the availability of state-provided care to meet the needs caused by the injury must be disregarded by the court. The recovery of amounts in personal injury schedules of loss based on heavy commercial care rests entirely on this legislation and sweeping it away would be a big move. It is something that the main medical defence organisations have been advocating for a long time and the Select Committee’s report looks to be the first time in the last couple of decades that the idea has gained any real traction with policymakers. In the event that it secures any momentum, those compensating non-clinical personal injury claims might well reflect on whether the proposal could or should be expanded to apply to the awards and settlements that they meet.

As worded, the second element of this recommendation reads as a straightforward cap on the recovery of earnings greater than national average. Caps such as this, or fixed ceilings, are often found in no-fault schemes in other countries. Although they are easily criticised as being arbitrary, they can also be regarded as the inevitable quid pro quo for the lower access threshold inherent in no-fault when compared to negligence. At a macro level, because the lower threshold inevitably captures more claims, if the overall ‘pot’ is to remain the same it must follow that individual awards have to be reduced by approaches such as capping. Whether capping genuinely sustained loss of earnings could be regarded, in the language of the recommendation, as another “unjust variability” is certainly open to debate.

If taken forward, the two strands of recommendation 21 would be likely to meet strong objections from organisations supporting children with birth injuries and from parts of the legal sector. As Sarah’s earlier blog says, changes of this nature may engage Convention rights and could therefore be subject to formal challenge in the courts.

22. Finally, given their recognition of the role the professional regulators have in ending the blame culture, we recommend that the General Medical Council and the Nursing and Midwifery Council review what changes are required to their remits or working practices to reduce the fear clinicians have of their regulators and allow them to open up more about mistakes that are made.

Regulated professionals will (rightly) fear their regulators because the latter have the power to withdraw the formers’ rights to practise: hard to see this as a relationship of equals.

In that context, the perceived “blame culture” in claims is certainly unhelpful but quite how it can be broken down by shifting fundamentally the remit of the regulator is not immediately clear. The introduction of a clinical duty of candour several years ago and improvements in the treatment of NHS whistle-blowers could and should go some way to weakening the “blame culture”, but the MPs’ recommendation looks to be intended to go further than that.

Implementing the recommendations above would be challenging and would bring radical changes not just to the claims processes but also to the substance of awards made for birth-related injuries. The main recommendations in respect of maternity safety are of a similar nature.

Certain parts of the report call for a government response by this September, but if that timing is adhered to, it would be difficult to see a response as being anything other than entirely superficial.

In its report, the Select Committee has produced a thoughtful and well-structured analysis which surely merits a careful and considered response from government – so yet another challenge in the in-tray of the new Secretary of State for Health. His colleagues in the Ministry of Justice may need to be involved at an early stage if legislation to implement the kind of tort reform suggested in recommendations 20 & 21 is to be taken forward successfully.

Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com

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