What we know

The current system for delivering compensation can be costly and could work better. Legal costs are disproportionate and cases are often pitched into litigation prematurely. High numbers of claims are brought where compensation is not recovered and claims for damages can be excessive, resulting in the parties taking polarised positions.

We know that claims are often pursued in search of an explanation or acknowledgement that something has gone wrong. Patients and healthcare staff do not want to find themselves in court proceedings, particularly when care is ongoing. Our experience of mediation and other forms of Alternative Dispute Resolution (ADR) is that a more effective solution can be found, when the court process is set aside, and the ambiguity and range of views which often exists can be properly explored.

The claims we handle fall broadly into two categories which need different approaches. 33% of annual expenditure comes from obstetrics, which represents 10% of claims received. The share of the provision relating to obstetrics is very much higher given the growing Periodical Payment Order (PPO) liability. The bulk of this cost involves brain injury at birth and so will be the main area of focus for our shift upstream. For lower value claims, legal costs exceed damages threefold and so our efforts there will be focused on how these claims can be resolved in a more proportionate way.

Our aims

  • To challenge the status quo in the legal environment, reducing litigation and increasing the use of ADR.
  • To reduce the unnecessary costs attached to claims and inform policy initiatives designed to achieve this outcome.
  • To extend the reach of National Clinical Assessment Service (NCAS) into organisations that are currently not using its services, particularly when there is a serious incident or safety concern.

What we will do in year one

  • Research why people claim with the help of pilots with claimant firms and capture whether expectations are being delivered. What we find will inform the changes we make.
  • Push ahead with the use of mediation for healthcare disputes and test ‘point of incident’ mediation where the relationship between the family and the NHS trust is at risk following an incident.
  • Put more of our resources into the early investigation of claims, particularly where these involve brain damage at birth so that early decisions can be made and explained to the patient, the family and healthcare staff.

Over five years we will

  • Deliver a programme of education and practical support to NHS trusts in being open when an incident occurs, so that those who are harmed receive a prompt and transparent explanation and an assurance that lessons have been learned.
  • Develop a network of peer support for healthcare staff who find themselves involved in an incident or claim, making the most of the skills of our NCAS team in supporting practitioners in difficulty.
  • Target legal costs, getting the very best for the NHS from our contracts for legal services, building our own teams and applying external legal resource only where it adds value. We will inform legal costs reform and use our data to identify and address overcharging by claimant lawyers.
  • Make a cultural shift, training and setting standards for our staff and legal panel to ensure a sympathetic, personalised approach and tone is taken with all cases and that we reflect on the use of legal jargon, putting ourselves in the shoes of the injured person. We will pay particular attention to how our teams interact with ‘litigants in person’.
  • Extend the reach of our NCAS team and increase the demand for its services where they can have the most impact.

We will know we have succeeded when

  • We see a drop in the number of ‘frustration’ claims which have only been made because of a failing earlier in the process, such as lack of candour.
  • Formal litigation in the courts and the associated legal costs reduce.
  • The number of concerns about healthcare which are resolved by mediation increases.
  • The income generated by our advice and assessment services increases and we meet the challenge to reduce our Grant-in-Aid funding for administration.