The Department of Health and Social Care’s consultation into Fixed Recoverable Costs for clinical negligence claims against the NHS will end on April 24th. But what happens next could be set to impact the public’s access to justice.

Government plans for Fixed Recoverable Costs are set to cap legal costs recoverable by a successful claimant from the defendant in lower value clinical negligence claims where damages are less than £25,000. Such claims make up around 60 percent of all clinical negligence claims against the NHS. Under the new scheme, claims would be assigned either to a light track or standard track according to their complexity and the extent to which liability is agreed at the outset. The proposals are to cap standard track claims’ costs at £6,000 plus 20 percent of damages agreed, and to cap simpler, light track claims’ costs at £2,000 plus 10 percent of damages agreed.

It is the government’s view that this is the best way of reducing the financial burden of clinical negligence claims brought against the NHS. They see claimant lawyers as a burden and a drain on the public purse. But is it not illogical that those holding the public purse strings are the sole decision maker in how clinical negligence claims will be handled moving forward?

They say the road to hell is paved with good intentions. It is our view that capping clinical negligence claimants’ legal fees through Fixed Recoverable Costs will have the opposite effect of what is intended.

The plans are flawed and unworkable, made with no option of compromise or a half-way house with law firms. In a bid to combat the so-called adversarial approach to resolution, the DoH is in actual fact cutting their nose off to spite their face.

Simply put, many specialist law firms like us here at Medical Solicitors will be forced to bow out of lower value claims. Many firms are already being selective about the claims they take on and commit resources to. Fixed Recoverable Costs will leave claimants with lower value clinical negligence claims even less choice in who represents them.

Vulnerable claimants, such as the elderly, disabled and minority groups, will be disproportionately affected, reducing their access to justice. Some claimants will be swayed into representing themselves, leading to an influx of court cases that will cause chaos for the court system, as did the reforms in legal aid for family law.

For firms still handling lower value clinical negligence claims, it will restrict their ability to work to the highest standard. The work we put into each claim is the same irrespective of claim value.

Lawyers save the NHS money

For context, law firms like ours prevent a large number of claims being brought against the NHS. Free of charge we provide an in-depth assessment of all enquiries we receive to see if there is a reasonable chance of success. Our qualified and skilled litigators prevent unsubstantiated or frivolous claims from slipping through the net. Around half of all enquiries we receive each month are filtered out, the majority being unavoidable experiences rather than victims of clinical negligence.

For many who may be victims of clinical negligence, we don’t automatically sign clients up but help them to make a formal complaint to the NHS Trust, GP, or dentist if they have not already done so. Often, it is answers and an apology that patients affected by medical errors are looking for. If they are not getting those answers or feel their concerns are going unheard, then this is when they seek legal advice. Specialist law firms are actually saving the NHS money by preventing many cases from being brought.

Yet when claims are made, the NHS and defence organisations continue to fight tooth and nail to deny, delay and defend instead of assessing, admitting, and apologising months and even years before they eventually do settle at the door of the court, by which time legal costs have piled up.

One overbearing issue with the consultation is that figures used have been skewed by the partisan contributors to benefit the NHS. Maria Caulfield MP, who is leading the consortium, has since had to apologise for twice misleading Parliament that rising legal costs were significantly to blame for the increasing burden of litigation against the NHS. Retracting her comment, she said: ‘Although rising legal costs have been an important driver of costs over the last 15 years, the main driver has for the last few years been rising compensation payments.’ 

The Medical Defence Union and the government’s advisors claimed that clinical negligence claims cost each household £3,600 a year compared to £700 ten years ago. However, this is not based on actual figures of annual costs of settled claims or awards, rather it is an estimate of the total of all potential liabilities over an indefinite timescale. The consultation document also fails to acknowledge that defence costs, in contrast to claimant’s costs, do not include the cost of work by in-house lawyers employed by the NHS, VAT or court fees, so a fair comparison cannot be made.

As some claims take longer than others due to their complexity, it can be hard to predict the ultimate fee. It is also important to point out that at the conclusion of the case fees of claimant law firms are agreed with the defendant or assessed by the courts as reasonable and proportionate for the work carried out. We justify each cost and expense incurred.

Claimant legal costs continue to fall year-on-year, but the predicted saving of £45m a year will only make a small dent in the total legal costs (claimant and defendant) paid out which in 2020/21 was £582m.

Fixed Recoverable Costs addresses the wrong problem

The government’s argument remains that the current system is unfair and unsustainable. Millions of pounds leave the NHS that could be better spent on services to patients. But it is disingenuous to lay the blame solely at the hands of claimant law firms. The health of a nation shouldn’t be impacted by the costs of clinical negligence. Avoidable errors will still happen and these should be properly budgeted for.

Clinical negligence law firms are not against reforms to the process. For too long we have fought for patient justice through unproductive trench warfare against an institution that is known to deny responsibility and delay litigation in defending a claim. This behaviour is what often wastes time and increases costs.

Low value clinical negligence claims in particular have seen the biggest rise in duration, up 46 percent in ten years to now average 1.3 years from notification to settlement. Claimants are sometimes frustrated by the time it takes for the NHS to respond to claims.

The new FRC plans propose implanting maximum resolution times of 44 weeks for standard track claims and 20 weeks for light track claims, with sanctions for claimant lawyers if they breach these. But as fixed costs would only apply to claimant firms, NHS lawyers will have further incentive to delay, deny liability or make unreasonable demands.

The process needs to be streamlined to support timely and cost-effective resolution. But is stocktaking mandatory neutral evaluation by a single joint-expert truly fair to both parties?

The costs of claimants are always higher than the defendants as they have to discharge the burden of proof. Adding more hoops to jump through, while capping the fees of those doing the work, will surely result in more delays. 

Above all, the real focus should be on improving patient safety to prevent the need for clinical negligence claims. Lessons from litigation should be used to create a culture of learning and improvement across the whole of the NHS. Fixing costs and reducing the ability to claim won’t reduce negligence in the NHS and won’t stop people being harmed and suffering life-changing injuries.

Claimant law firms have been lobbying the government for five years about Fixed Recoverable Costs, but in these proposals the government has missed an opportunity to address the real issues of patient welfare and safety. 

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Our surgery claims expert:

Caroline Moore

Managing Director/Head of Sheffield Office