2017/18 marked the first year of NHS Resolution’s (NHSR’s) five year strategy “delivering fair resolution and learning from harm.” As a claimant clinical negligence lawyer more than anything I want to see the level of harm reduced and patient safety promoted. This should reduce the number of claims being brought and save costs. This may seem a little like a turkey looking forward to Christmas, but patient safety must be central to all considerations.

As ever the report looks very pretty, with lots of statistical measurement, but what does it actually mean for the injured patient?

There are without doubt some very positive trends:

• Mediations have more than trebled in the last year from 50 to 189. I am pleased to be able to say that included one of mine and that was successful. The process worked and I think the right outcome was reached.
• Legal costs have been reduced by £31.8 million or 6.4 per cent in 2017/18. This is indicative in my opinion of a more proactive approach having been finally adopted by the NHSR rather than the previous experiences of delay. Again provided these savings are properly invested into frontline care, rather than placed in some Government reserve, then this is good news. On the other hand it was noted that the NHSR spent an additional £3.2 million or 2.5 per cent on defending claims.
• Just 110 cases had to proceed to trial in 2017/18. 68 per cent of cases notified to the NHSR were dealt with before litigation.
• Their early notification scheme for birth injuries seems a positive development, but this should not be an angle whereby rapid redress and resolution is promoted at the expense of the loss of the needed 100 per cent compensation for the injured child.
• Claims numbers reduced slightly. Allowing for fluctuations, this meets with the approximate trend that has been evident in the NHS for a number of years that the number of claims brought is between 10,000 and 12,000 cases annually. Given the number of treatments provided this remains evident of good care generally being provided.
• NHSR state that they “also share an objective with NHS Improvement to achieve reduced levels of harm through increased reporting and learning from errors.” This statement if maintained and put into practice can only be commended.

There are however always some other indications that are less positive:

• For the NHSR damages payments increased by £500 million. This reflects the discount rate change more than anything else. While inevitably the belief will be that this is indicative of greater financial pressure on the NHS, it should not be forgotten that for more than 15 years injured patients with catastrophic injuries were grossly undercompensated.
• Obstetrics claims represented only 10 per cent of clinical claims by number in 2017/18, but they accounted for 48 per cent of the total value of new claims reported. The NHSR dealt with 211 maternity claims in 2017/18.
• The projected cost of obstetric payments to be made in 2018/19 is £735.7 million. While undoubtedly there are aspects of care in the NHS that are very well managed, concentration on training, recruitment and concentrating on reducing obstetric negligence has to be their priority for patient safety. It is not rocket science that understaffed, tired units make mistakes.

What is proposed?

Lower value scheme – fixed recoverable costs

• Costs are reducing but proportionately most notified claims are in the bracket below £50,000. It has been provided for by the Government that work should commence on a form of streamlined process for cases valued at £25,000 or less. This will inevitably reduce the costs recovered in these cases, but should not be so uneconomical that it is impossible to properly represent the injured person’s needs. This is a matter of great debate in claimant groups, some being fervently opposed, while others, such as APIL, have an approach that a properly designed system could potentially work. What must be remembered though is even on current figures for the NHS, this process is likely to only deal with about 5,000 cases annually. This is not in any way similar to portals for other areas of personal injury where hundreds of thousands of claims are notified annually. I am quietly confident that an appropriate specifically designed system could be workable. As patient safety practitioners we cannot afford to refuse to engage and get a bolt on to one of the existing fixed recoverable cost processes which would result in a definite reduction in access to justice.

Rapid redress and resolution

• The aim is that the scheme is to be up and running by April 2019 (a busy month for the Government with all their targeted changes). There are many reservations about the scheme. By way of recap this is a proposed voluntary scheme as an alternative to litigation in claims involving severe birth injuries. Stage 1 would be early investigation and shared learning, and stage 2 would be a redress package for the claimant. Stage 2 of the scheme has several major flaws: compensation awarded under the redress scheme will amount to only 90 per cent of the average court award. There will also be a tokenistic “early” payment when the child is four, of between £50,000 and £100,000. Given the likely needs of the injured child, at that stage, this is not going to be sufficient. However depending upon how this is sold by the Government and the press this could seem on the face of it attractive to families of injured babies.

Discount rate

• The NHS expects to be heavily involved in the setting of the discount rate. As indicated previously the change in 2017 corrected more than 15 years of imbalance. The consequence of the likely change is that 100 per cent compensation, a staple of all principles of advice provided to injured persons, will cease to become achievable.

General practice indemnity

• NHSR are to be administrators for general practice indemnity again with the scheme planned to be introduced in the busy month of April 2019. As of yet there is no indication of what this will look like. This needs to be watched carefully as it should not be allowed to be a method of fudging the figures to show an increase in claims against the NHS in the future.

Other ongoing concerns

• The report makes reference to the Ian Paterson litigation and it is noted that of the damages paid the NHS did pay £3.6 million by way of contribution.
• Vaginal Mesh – the NHSR indicate that they have received “in excess of 100 claims arising from the use of vaginal mesh products [which were only reported as being withdrawn from use this week], which are used for the treatment of pelvic organ prolapse or stress urinary incontinence. The surgical procedures mostly involve a synthetic mesh, transvaginal tape or transobturator tape. This number should be viewed in the context of more than 100,000 women (as estimated by NHS England) having been implanted with a mesh product in the last decade.” We should be cautious of this being used as a mechanism in the future to artificially inflate figures as had this product been properly withdrawn when the concern was known then the figures would be less.
• The failure of the national breast screening programme was announced 2 May 2018. This is something that should have been avoided by proper IT system redundancies. There will inevitably be numerous (probably) lower value cases arising from this and this must be remembered when considering the potential impact of the fixed recoverable costs scheme.
• Gosport is not mentioned as an ongoing concern by the NHSR.

The report, as ever, concentrates on the financials and does not really tackle the reasons why the NHSR continue to pay out significant damages amounts. We know that as patient representatives the NHS could be more candid with their patients when errors are made and should be learning from the mistakes more readily. Until they do we must maintain the fight for patients’ rights. Fundamentally a patient will never make a claim if they have not been harmed.