NHS must address interim funding gap

As a solicitor specialising in spinal injury claims including both personal injury and clinical negligence matters, I have always been baffled by the lack of interim funding available in the latter of these claims. 

Information obtained from NHS Resolution (NHSR) through a freedom of information request shows that of the 6,969 clinical negligence claims that were settled by NHSR in the financial year 2019/20, interim funding was given in only 650 (9.2%) of them.

These figures are staggering. More than 90% of claimants in these cases clearly endured avoidable clinical negligence and most probably suffered its consequences in the form of, for example, ill health, mental health issues, ongoing care needs and work difficulties, with no access to interim funding from the defendants to help alleviate at least some of these issues and aid their recovery while claims are ongoing.

This is in stark contrast with PI cases. Many road traffic collision (RTC) claims, for example, will have interim funding offered or agreed, often shortly after the claim is notified (and possibly even before decision on liability is made). From my experience, these interim payments can be significant (reflecting a claimant’s rehabilitation needs) and insurers are more willing to consider further payments, as required, throughout the life of the legal claim.

It has been the topic of many discussions with case managers who sadly share these sentiments. The ratio of clinical negligence cases versus PI claims where case managers are instructed has been and remains worryingly low. Furthermore, even when there is an opportunity to instruct one, the amount of interim payment is usually very limited and claimants are having to forgo many of their rehabilitation, care or other needs, often with no prospect of being able to secure a further payment to allow them to continue with rehabilitation.

Interim funding is vital for many who have experienced clinical negligence and can be used for things such as specialist inpatient rehabilitation, physical and psychological therapy, reversing procedures that were performed incorrectly and so on.

It has long been accepted that early rehabilitation yields significantly better long-term outcomes for those injured. For example, a 2018 study confirmed that early intense rehabilitation aids recovery and improves outcomes for people with moderate to severe traumatic brain injury.

Mental health is another area to consider. Those who sustain life-changing injuries, such as spinal injuries, are more likely to develop mental health issues. This can create a further barrier to effective rehabilitation and lead to much poorer overall recovery.

Recent research by the Spinal Injuries Association, the University of Reading and the University of Buckingham found that 28% of spinally injured people reported having had suicidal thoughts, compared with just 8% of the rest of the population. Half of the participants reported having mental health struggles. It also highlighted issues with mental health support through the NHS, including long waiting lists, and lack of specialist knowledge and counselling for spinal cord injury sufferers. More than two-thirds of participants did not feel the available support services were suited to their needs.

Claimants pursuing clinical negligence claims often find themselves in the most unenviable situation where they cannot afford specialist treatment privately, have no funds from the defendant and the NHS provision for many aspects of their condition is scarce. Additionally, clinical negligence claims can take years to settle as the process of investigating liability, evaluating present and future needs and negotiating a settlement can be time-consuming.

Take for example individuals who have developed cauda equina syndrome, a life-changing medical condition where all of the nerves in the lower back suddenly become severely compressed. Clinical negligence claims for delayed diagnosis and treatment of this condition have been rising in the past decade or so and yet very few of these clients receive interim funding. While it is generally accepted that rehabilitation plays an important role when recovering from this condition (which can include bladder, bowel and sexual dysfunction as well as mobility issues and neuropathic pain), it can be a real challenge for these patients to obtain a specialised therapeutic input on a multi-disciplinary basis through the NHS due to lack of resources, and also because of the strict eligibility criteria under the NHS spinal cord injury pathway.

The current situation, with ever-increasing NHS waiting lists for surgical treatment and therapeutic intervention, makes it impossible for those injured through clinical negligence to access specialist treatment or therapies at a critical time in their recovery process.

Social care provision is also severely under-resourced and claimants are often left to rely on friends and family, or make do with no care at all. This can put them at risk of further injury (which can mean bigger compensation payouts by NHSR). Stories of clients having no option but to rely on their elderly and often ill parents are sadly not uncommon.

Having access to interim funding for clinical negligence claimants is likely to result in their recovery being optimised and a lesser degree of longer-term dependence on carers, state benefits and so on. It can also free up already stretched NHS services.

Here are some ways in which interim funding can be utilised while at the same time saving money for NHSR.

• Access to professional carers/enablers, possibly allowing the injured person to conserve sufficient energy to resume employment.
• Access to specialist mental health support and pain-management services to include coping techniques to deal with mental health stressors.
• Access to (neuro) physiotherapy and/or hydrotherapy sessions (if one is lucky enough to be referred on the NHS it is likely to be limited to roughly six hydrotherapy sessions). This helps with pain management, increasing the range of movements in joints and overall mobility.
• Access to specialised equipment/vehicle leading to greater independence and better prospects of resuming employment.

It is difficult to understand why NHSR’s approach to interim funding is lagging behind.

It has never been more important for NHSR to address this gap and for a more collaborative approach to be adopted. This way those who sustained injuries can maximise their rehabilitation potential in the early stages of recovery and increase long-term independence and quality of life. This issue is particularly timely in light of the recent ministerial comments that legal costs in lower-value clinical negligence claims divert resources from the NHS frontline. A more collaborative approach on interim funding will not only help save NHS costs but also ensure that victims of medical negligence are treated fairly and properly.

Alex Dabek is a senior associate in the spinal injury team at Bolt Burdon Kemp