Government launches inquiry into NHS medical negligence system reform

In July 2021 the Parliamentary Health and Social Care Committee’s report into the safety of maternity services in England condemned the rate of improvement in NHS maternity care as too slow. Amongst its findings, the Committee, chaired by former Secretary of State for Health and Social Care, Jeremy Hunt, highlighted that the NHS is still not learning from patient safety incidents in maternity care.

It recommended that the Healthcare Safety Investigations Branch (HSIB) should continue to carry out maternity investigations, subject to improvements including speeding up the timescales within which HSIB reports back to families of those who have been affected by avoidable injuries during maternity care.

The Committee blamed the adversarial nature of medical negligence litigation (the process of proving blame to obtain compensation) for the NHS’ cultural problem which exists in so many dysfunctional maternity services and has contributed to so much harm. Despite the urgent calls for change from countless inquiries into the maternity scandals which have hit the headlines in recent years, the Committee noted that the Ockenden Review in 2021 found that little has changed since these problems were brought to light during the Morecambe Bay Investigation in 2015. 

Jeremy Hunt was quoted as saying: ‘We need a system where people are entitled to compensation as soon as it is accepted that a mistake was made without the necessity to prove clinical negligence.’

Accordingly, the Committee recommended immediate implementation of the Rapid Resolution and Redress Scheme for Severe Avoidable Birth Injury (RRR), originally proposed by the Department of Health in its consultation in 2017, and reforms that compensate maternity cases based on whether an incident was avoidable rather than requiring the patient to prove clinical negligence.  

Meanwhile the Committee urged the government to bring forward proposals to review the clinical negligence system. Specific recommendations were made to cut compensation payments for brain-injured babies in maternity negligence claims by reducing all loss of earnings claims to the national average wage and removing the right to claim the costs of private care (where NHS equivalent care is available).

Government response to Health and Social Care Committee’s report

The government issued a response to the Health and Social Care Committee’s report which accepted that unacceptable variations in the quality of care and outcomes exist within NHS maternity services, with improvements especially needed  in organisational leadership and culture.

Amongst specific actions being taken to improve maternity safety and reduce brain injuries to babies, they confirmed that they are working with Royal Colleges (such as the RCOG) and the Care Quality Commission (CQC) to create a standardised approach to fetal monitoring. They accepted that appropriate staffing levels are a prerequisite for safe maternity care and said that they would ‘take into consideration’ the Committee’s call for increased funding to ensure that maternity services have adequate staffing levels to provide safe care.

The government stated that patient safety and reducing avoidable harm is a top priority for NHS and that it is committed to developing a safety and learning culture and transparency across the NHS.

Rapid Resolution and Redress (RRR) scheme rejected

The government rejected the RRR scheme, based on the realisation that it would not reduce the cost of clinical negligence and claiming that some of its proposed benefits have been achieved by NHS Resolution’s Early Notification Scheme (ENS) and HSIB’s investigations. Given that neither HSIB nor ENS (in all but a very few selected cases) have resulted in easier access to compensation for families of brain-injured babies, we could question whether providing rapid financial redress for injured patients was really the objective of the proposed scheme.

NHS Litigation Reform Inquiry calls for evidence

The Health and Social Care Committee has launched a new ‘NHS Litigation Reform’ inquiry, to look into reforming the system for medical negligence claims against the NHS. The inquiry’s focus is on whether changes to the system could reduce the amount of money paid out for clinical negligence claims and encourage the NHS to improve patient safety in future by learning from its mistakes. The deadline for contributing to the inquiry by answering questions on the UK Parliament website is 20^th October 2021.  

A commitment to transparency whilst hiding the inconvenient truth?

Meanwhile, despite the government’s list of initiatives demonstrating its commitment to developing transparency and a safety and learning culture, it seems that ‘transparency’ has hit an all-time low. 

The latest reports from GIRFT, known for their in-depth and honest scrutiny of the causes of mistakes and variation in healthcare services, are no longer accessible to the public or clinical negligence patient advocates. This includes their long-awaited report on maternity services.

The new Health and Care Bill 2021 will include the creation of a statutory Health Services Safety Investigations Body (‘HSSIB’), giving the current HSIB statutory status, replacing the Health Service Safety Investigations Bill which was abandoned part way through its passage through Parliament in 2019.

Whilst the new HSSIB will have more power to compel healthcare services to produce information, answer questions and cooperate fully with its investigations into patient safety incidents, the downside for the injured patient is that the new HSSIB will operate under ‘safe space’, preventing access to and disclosure of information and evidence used in healthcare safety investigations. This will apply even in clinical negligence compensation claims, including where maternity safety incidents have caused avoidable harm to a child. The inclusion of maternity investigations within HSIB/HSSIB’s ‘safe space’ remit was previously removed from the Health Service Safety Investigations Bill, following criticism from the Parliamentary Joint Committee’s review.

The new Health and Care Bill 2021 also provides for NHS England or any other public body to carry out maternity investigations in future. The government says it will decide on which option is appropriate in due course. Until it does so, however, it appears that HSSIB will remain responsible for maternity investigations (under safe space) by default.

If you or your child have suffered serious injury as a result of medical negligence, you can find out more about making a claim by talking, free and confidentially, to one of our solicitors. Contact us here.