Joachim Stanley considers proposals for the NHS Litigation Authority to adopt a new approach to managing clinical negligence claims, under the new name of ‘NHS Resolution’.
I was interested to note that from April of this year, the NHS Litigation Authority will change its name to NHS Resolution. The change of name will also be accompanied by a new strategy. NHS Resolution will be more involved in incidents at an early stage and has launched a new approach in the way that it response to incidents involving brain damage at birth.
NHS Resolution (as it now is) advises that it has already approached Trusts, asking them to report all maternity “incidents that occur on or after 1 April 2017 which are likely to result in severe brain injury in order to increase the level of support we provide when these rare incidents occur”. The definition of a “severe” brain injury is, sadly, not set out. Neither is it clear whether the support to be provided is legal, clinical, pastoral (and if so whether for families or the treating clinicians), or a combination of all three.
NHS Litigation Authority
The NHS Litigation Authority (NHS LA) is a government body which manages claims that are brought against the NHS in England. Its remit is wider than litigation, in that it is also tasked with sharing information about risks and standards within the NHS, and assisting with improving standards of safety both for patients and staff. Thus, it is tasked not only with managing litigation arising from errors, but also learning from them.
The consultation document ‘Delivering fair resolution and learning from harm’ advises that the proposed changes will foster a more conciliatory approach than its predecessor. It will seek to engage in ADR (‘Alternative Dispute Resolution’) at an earlier date than was hitherto the case, with the aim of facilitating earlier settlements. The document further advises that 33% of the NHS’s annual budget for clinical negligence claims is spent defending birth injury claims, which account for approximately 10% of the overall number of claims brought.
In terms of lower value claims, the paper notes that legal costs outweigh damages awarded by a margin of 3:1. I suspect this methodology (i.e., an implied binary separation as between claims arising from birth injuries and all other claims) is open to challenge, but in any event, it is good that the NHS’s in-house legal team is tacitly acknowledging that it bears some responsibility for the legal fees associated with clinical negligence claims.
New Name, New Approach?
Historically, the NHSLA appears to have operated a policy of “defend, deny, delay”, which did much to push up legal costs. These would then end up on the Claimant’s legal bill, and the NHSLA would then routinely complain about this, thereby abnegating any responsibility for the consequences of its own behaviour. ADR was agreed too late in the day – if at all – and it has not been uncommon for the NHSLA’s retained legal representatives to attend negotiations without any realistic offers to settle, and/or throwing up spurious points at the last minute. Unsurprisingly, many cases concluded at the Court door, and at far greater cost than they otherwise might have done. It was sometimes difficult not to conclude that annual departmental budgets informed the handling of particular cases perhaps more than objective assessments of their merits.
If the change of name ushers in a new era of reasonable defendant behaviour, an early assessment of clinical negligence cases and even a sensible approach to negotiations, then this is to be welcomed. I sincerely hope the new name brings about positive change in the way that the NHS manage claims investigated against them but I remain to be convinced that this is what will happen.
Please get in touch if you wish to discuss the NHS Litigation Authority or any other query about bringing a clinical negligence claim.