A committee of MPs has called for a complete overhaul of the way compensation is paid to NHS patients who have suffered harm.

The health and social care committee today calls for the effective abandonment of adversarial clinical negligence litigation for most cases and the establishment of an independent administrative body to investigate cases and determine compensation.

The committee recommends a change in the law so that access to compensation is based on agreement that correct procedures were not followed and the system failed to perform, rather than having to meet the threshold of clinical negligence.

MPs also want all compensation to be based on the costs necessary to top up care through the NHS, rather than the current assumption that care will be provided privately. They further advocate the scrapping of the expected future earnings link in claims for people under 18, a system that leads to ‘manifest unfairness’.

The recommendations would not necessarily prevent patients from litigating, but they would have to go through the new administrative body as a mandatory first port of call.

Committee chair Jeremy Hunt MP, a former health secretary, said the system of compensating patients is long overdue for reform, and it was unsustainable for the NHS in England to pay more than £2bn in negligence payments every year. ‘Under the current system, patients have to fight for compensation, often a bitter, slow and stressful experience with a quarter of the enormous taxpayer-funded sums ending up in the pockets of lawyers,’ he said.

‘We need a better system that learns from mistakes, following the lead of countries like New Zealand and Sweden. We must move away from a culture of blame to one that puts the prevention of future harms at its core.’

The committee says the current system makes learning from mistakes harder not easier, seeking out individual failings rather than reviewing cases in a way which accounts for wider context.

If implemented, such changes would have a significant impact on the clinical negligence sector. Representative bodies today condemned the report, saying the proposals would increase costs and require patients harmed by the NHS to rely on it for future care.

‘This move would create a huge increase in the number of claims against the NHS,’ said Guy Forster of the Association of Personal Injury Lawyers (APIL). ‘The only way that would be sustainable would be to reduce dramatically the level of damages people would be able to claim.That would undermine the principle of full and fair compensation for people who are injured through the negligence of others and that is completely unacceptable.’

The Medical Defence Union welcomed the report but cautioned against too much focus on structural change at the expense of more immediate reforms. Dr Matthew Lee, chief executive, added: ‘We have considerable reservations about the central recommendation of the committee. The proposal to remove the need to prove clinical negligence following an adverse event in the NHS, and instead establish an administrative body to determine whether the harm was avoidable - would represent a seismic change from the current legal position.’

 

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