We work at the interface of the civil justice and the healthcare systems. We have the ability to inform and develop solutions in both, but work within the parameters of the legal system.
So, we cannot change the law; and we are not a regulator. Delivery of our strategy depends on close working with others but also on others delivering things that are not within our control.
The rising costs of clinical negligence are a significant concern to the NHS. In 2017/18 we will collect £1.949 billion from our members to meet these costs.
By 2019/20 (the end of the spending review period), that is projected to rise to £2.691 billion.
This will translate into an increase of 17% annually on average in contributions to our main indemnity scheme, the Clinical Negligence Scheme for Trusts (CNST) for that period. The provision for future payments is also significant and rising. This was £56.4 billion as at 1st April 2016 and will need to be paid out over time for incidents which have already happened.
Claims for seriously injured patients, such as those who suffer brain damage at birth, are usually paid by way of a lump sum up front together with annual payments for the rest of that person’s life (periodical payment orders, or PPOs). This means that the injured patient is financially secure and money which would otherwise be paid up-front is instead retained for patient care.
However, the costs of meeting these annual payments will only increase in the long-term as more patients are compensated.
This is unsustainable, particularly given the financial challenges facing the NHS. It is also to a degree, unavoidable, without significant law reform.
Our historic remit has been focused on claims and constrained by the time lag between an incident occurring and a claim being notified.
Actions in-between may exacerbate the situation and harm the relationship between healthcare staff, the organisation and the individual which can be so important in achieving resolution of a claim for compensation. Over the next five years we will extend our activity into this field.
External drivers lie in the legal framework which governs the basis on which compensation can be recovered and the funding arrangements for bringing a claim for compensation. Our role there is to inform and propose solutions and will in the future be driven by even greater analysis of the data which we hold.
Our datasets (claims brought against the NHS in England and concerns about practitioners) are unique in the area of safety and learning. They are of most value when combined with data held elsewhere. The indemnity schemes provide both a platform for sharing learning and a financial lever for improvement and can be used for the wider benefit of patients.
We will ensure that the services we offer are aligned with those who have leadership and accountability for safety, such as NHS Improvement and commissioners and that we complement their efforts and those of our NHS provider members.
Finally, our indemnity schemes, advice and dispute resolution services must also adapt and respond to the changing structure of a health service which in five years time will look very different.
A flexible and comprehensive indemnity offer which responds to the NHS Five Year Forward View and provides the best value to the service, notwithstanding the rising cost, will mean changes to our regulations as well as to our operational structure and the way in which we work.