If you are (or expect to be) fighting a clinical negligence case against the NHS then you need to know about what is arguably the biggest change in clinical negligence litigation in decades.

From April 2024, you will no longer be able to recover all, reasonably incurred, legal costs in pursuit of such a claim. Currently if you hire a lawyer to help you fight such a claim then (so long as you win your case) the money you pay to them will be paid for by the Defendant. From April 24, if you want to hire a lawyer to pursue your case you will either need to find one who works for less money or simply pay them out of your own pocket or more likely out of your compensation. Want to know why? Well, guess what? Me too!! So, seeing as how I am such a good egg (and seeing as how I don’t much fancy working for less than I do now); I decided to have a look at the numbers.

To really know why the government has introduced these changes, you would need to know what their motivation is. Instead we jsut have to go with what they tell us.

The  consultation document published last week by the Department of Health and Social Care is an absolute ‘ripsnorter’ of a publication that is unfortunately essential reading for all clinical negligence lawyers in England and Wales.

In the foreword we have the following: –

“Making the best possible use of NHS resources is vital. While spending on healthcare services has increased, supporting improvements in quality and safety, in recent years more of this money has been diverted for the purpose of addressing clinical negligence claims. Our analysis suggests that this is because the overall cost components of claims, including damages, have been growing at rates far higher than inflation and continue to rise rapidly.

Between financial years 2006 to 2007 and 2022 to 2023, the annual expenditure on clinical negligence claims more than quadrupled from £0.6 billion to £2.6 billion, with legal costs comprising a notable proportion of this rise. These costs are funded from the core NHS budget and use resources that could otherwise have been spent on patient care.

For lower damages claims, claimant legal costs have risen more over the period than other claims and are often disproportionate to the value of those claims, with average legal costs recovered by the NHS twice the average amount paid out in damages to claimants. The length and complexity of the legal process can also be disproportionate given the relative straightforwardness of many claims at this level, meaning that people who have been harmed are experiencing the stress of a drawn-out process and waiting longer to receive compensation”.

My interpretation

• “Making the best possible use of NHS resources is vital”.
  • Well. I’d never have guessed would you? Is there any element of government expenditure about which this cannot be said?

• “While spending on healthcare services has increased, supporting improvements in quality and safety, in recent years more of this money has been diverted for the purpose of addressing clinical negligence claims. Between financial years 2006 to 2007 and 2022 to 2023, the annual expenditure on clinical negligence claims more than quadrupled from £0.6 billion to £2.6 billion……..”
  • No matter how much we money we pour into the NHS, fat cat lawyers keep on sticking their snouts in the trough and running off with it all.

• “……. with legal costs comprising a notable proportion of this rise”.
  • We couldn’t be bothered to find out exactly how much but mark our words we have definitely checked and it was, without doubt, a very very notable proportion indeed.

• “For lower damages claims, claimant legal costs have risen more over the period than other claims and are often disproportionate to the value of those claims, with average legal costs recovered by the NHS twice the average amount paid out in damages to claimants. The length and complexity of the legal process can also be disproportionate given the relative straightforwardness of many claims at this level, meaning that people who have been harmed are experiencing the stress of a drawn-out process and waiting longer to receive compensation”.
  • Our new system will cost less and resolve claims quicker!

They are not saying the following: –

What they are definitely not saying is that it’s due to any kind of repeated persistent and chronic underfunding that might have lead to the staff of the NHS being so overworked, underpaid and understaffed that mistakes are inevitable.

They are also not saying it’s because they work in a toxic hierarchical environment where a thick layer of unnecessary, overpaid, non clinically qualified middle managers have created an atmosphere that is so target driven and critical that it inevitably fosters a culture that is suspicious of anyone who is honest about mistakes and discourages exactly the kind of nurturing attitude that would make them easier to learn from.

They are not saying that despite the rhetoric they pedal which informs us that the NHS should simply be honest and learn from their mistakes, the reality is that they impose on the NHS targets and goals which encourage quite the opposite.

My point is that this is a change that is really targeting the wrong thing if you want to make a change that counts to the NHS.

I took what is, admittedly, a lay persons look at the numbers.

How much of the taxes you pay goes to pay for the NHS?

Well I could go into uber-analysis mode on this but long story short for every £1 you pay in either Income Tax or National Insurance Contributions roughly 35p goes to the budget of the department of Health and Social Care. You can see here that the expenditure is more than one third of the entire government spending in the year ending 2022.

It is by far the most expensive government department there is.

What Does The NHS Cost Per Year?

There are a few different ways you can find this expressed online and I musht admit that having read the relevant annual reports that despite the fact that it appears that the NHS budget has steadily increased every year since 2010/11 from £100.4 billion to £181.7 billion in 2022/23, the exact numbers seem to change depending on which part of the report you read. The headline numbers are not hard to find on other websites like The Kings Fund or The BMA, but as soon as you look at the source materials such as  Department of Health Annual Report and Accounts (2010/11-2016/17) or the DHSC Annual Report and Accounts (2017/18-2021/22) or the Public Expenditure Statistical Analyses (2022/23-2024/25) ,it suddenly becomes really hard going.

How much of the 35p in every £1 of my taxes goes towards paying for clinical negligence compensation and associated legal costs?

Now this was really hard to answer and I’m not sure why it should all be so hidden. It was genuinely frustrating. All I wanted to see in the documents I listed above was how our taxes are spent. However, all I feel I’ve got is a barrage of jargon and corporate speak. Shouldn’t every single citizen of this country have the ability to see how the taxes they pay are spent every year in a clear and concise manner?

Anyway, ranting to one side, as far as I can make out:-

This new fixed costs regime aims to limit legal costs on clinical negligence claims against the NHS.

On my analysis of the governments 2022 figures, these legal costs amount to less than 1% of the entire NHS’s expenditure each year.

So how much of my tax goes towards paying for clinical negligence claims per year?

Well based on the above for every £1 you pay in either Income Tax or National Insurance you will pay around 1/3 of a penny or 0.35%

Is it worth it?

So how much of the tax you spend would you pay to fund a system for holding the NHS to account when a  citizen is materially and/or physically harmed through their negligence?

Can the NHS be trusted to monitor and learn from their mistakes independently? From my own experience I would say no.

In my conversations with clients I have seen very little evidence, despite various health ministers’ declarations to the contrary over the years, that the NHS will ever be committed to either owning up to or learning from their own mistakes.

We all love the NHS but unless there is a culture change whereby all those who work for it are pro-actively inclined to look for, report and learn from so-called acts of negligence, then a figure of less than 1% of the amount budgeted seems like a reasonable fee to monitor it, in the absence of any other system of checks and balances. It’s not a perfect system but can you think of a better one?