Deliver achievable clinical negligence reform without delay, says MDU

The House of Commons Health and Social Care Select Committee has published the report of its inquiry into NHS litigation reform. The Medical Defence Union (MDU) engaged closely with this inquiry, submitting written evidence.

The MDU welcomes the publication of today’s report but cautioned against too much focus on fundamental and complex structural change, at the expense of reforms which could be implemented with greater speed.

Dr Matthew Lee, MDU chief executive said:

“The cost of clinical negligence is unsustainable.  At a time when the NHS needs those funds more than ever, to recover from the Covid-19 pandemic, reform can no longer be delayed.

“The MDU has long championed a number of changes that would go some way to addressing the problem. It is heartening to see the attention parliamentarians are paying to this important issue.

“Something we have been calling for repeatedly, is the repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948. This outdated law requires the courts to disregard the existence of NHS care when determining compensation awards. This provision should have been repealed decades ago, and we are pleased to see the Committee agrees with us and is recommending the government repeals it without further delay.

“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.

“The Committee’s report rightly notes that designing a scheme of this nature and establishing the criteria would be a complex task and we have significant concerns about the affordability of such a scheme. Nevertheless, we would welcome the opportunity to input on, and scrutinise, any such proposals.

“The time to address the cost of clinical negligence is now. We urge the government and Parliament to maintain a focus on reforms that we know could be delivered at pace, rather than being absorbed on the immensely complex task of designing a new scheme from scratch.

“We call on the government to publish its long-promised proposals on tort reform without further delay. These should include reforms to how compensation awards are calculated, caps on the level of damages awarded for future care, and damages for loss of earnings being brought down to proportionate levels.”