New Resolutions? - NHS Resolution 2017/2018 plan

The former NHSLA has published its first business plan under its new name, NHS Resolution. The 2017/2018 plan re-launches the Special Health Authority that was formerly responsible for defending and indemnifying legal claims brought against the NHS, as it shifts its stated focus from litigation to resolution.

The plan aims to align the former NHSLA’s purpose with Department of Health objectives to increase patient safety by learning from harm. NHS Resolution’s stated purpose is “to provide expertise to the NHS on resolving concerns fairly, share learning for improvement and preserve resources for patient care.” It is now committed to adopting “a different approach to delivering compensation and a shift upstream to support candour and learning to address the rising costs of harm in the NHS.”

The rising cost of clinical negligence is undoubtedly the primary driver for the change. NHS Resolution tells us that both the frequency and severity of claims are rising, with failings in maternity care giving the greatest cause for concern. NHS Resolution’s new notification team for maternity incidents will become involved at local level at the earliest post-incident opportunity, to provide support to families and staff, ensure that opportunities to learn are not lost and capture data that can be used to incentivise better outcomes in future. The aim is to use early intervention and alternative dispute resolution to resolve claims in a more efficient and less adversarial way, with less involvement from the patient’s own lawyer. The NHSLA claims, somewhat sweepingly, to have halved the potential cost of claims in 2016/2017 through its intervention, an estimate based on their own damages and costs reserves figures when compared with settled and otherwise concluded cases. Clearly, it is their belief that their institutional NHS clients benefit from experienced representation. We believe our severely injured claimants are entitled to the same.

NHS Resolution’s vision is that by extending their reach “upstream” to the immediate aftermath of the injury, they will be able to use their expertise to ensure that disputes are resolved in an open culture that promotes learning within an environment in which the injured person, their family and healthcare staff are all supported. At the outset, however, they make it clear that their remit is financial; “The financial challenges currently facing the NHS mean that we must take every opportunity to save money and remove unnecessary expenditure. We must continue to apply our expertise to add value in areas which would see significant cost without our involvement and look for opportunities to increase the impact we have.”

The Department of Health has reiterated the need to reduce the cost of claims to preserve resources for patient care during its recent moves to regain control of the rising costs of clinical negligence. In each case, despite the emphasis on reducing litigation costs, the problem remains that when patients suffer injury as a result of negligent care they are entitled to be compensated. That inevitably has a cost. The only sure way to reduce the cost of claims is to improve standards of healthcare and reduce the incidence of harm. Experience from other countries has shown that creation of an open, learning culture within the NHS is fundamental if incidents of avoidable, compensatable harm are to be reduced. Given the current cultural and financial difficulties faced by the NHS, it is hard to see how that will happen.

I commented in a previous post about the DoHs’ consultation on its proposed ‘safe space’ protection for healthcare staff in healthcare safety investigations. My concerns about the diminution of patients’ rights were echoed in the outcome of that consultation which acknowledged that from complaint handling experience to date, neither patients nor staff deemed the NHS trustworthy enough to use new safe space powers responsibly.

We are still awaiting the outcome of the Department of Health’s consultation on a proposed Rapid Resolution and Redress Scheme for avoidable birth injury. Here, again, any eventual reduction in claims seems totally dependent on the DoH’s vision of an open, learning culture that the NHS will find so hard to create. In the short term, under a new scheme, the sums don’t add up. Add to that the NHS’s ongoing responsibility to meet its lifelong periodical payment orders and there seems little hope of a decline in claims or costs.

NHS Resolution plans to tackle this problem by timely intervention to ensure efficient alternative resolution of claims. It will provide local training on effective delivery of candour, use innovative technology for data gathering and create a ‘faculty of learning’ to share what it has learned. Using its weight as well as its expertise, NHS Resolution will incentivise safety improvements with indemnity schemes used as both a platform for learning and a lever for change.

It might well be possible to reduce the number of ‘frustration claims’ – one of the objectives of the 2017/18 plan. Poor complaint handling, withholding of information, half-truths and administrative delays are often the reason that a mildly injured and otherwise non-litigious patient is driven to seek advice from a solicitor. But even the most forgiving of claimants must seek redress where their injury has led to permanent disability resulting in loss of earnings, the need for specialist equipment and life-long care. They have long needed early and open communication and proper support in the aftermath of an avoidable injury, and they will always benefit from specialist representation, a basic right which must not be overlooked in the furore about cost. A large proportion of the cost of clinical negligence claims would be reduced by early admissions of both liability and causation. All too often we still receive last minute admissions in the weeks leading up to trial.

Meanwhile the incidence of avoidable harm remains unacceptably high with the personal, emotional and physical cost to each injured family far outweighing any financial compensation award. In setting out its stall to achieve early, supportive and cost effective resolution to the emotive circumstances which follow a serious injury, along with learning and improvement for the future, NHS Resolution has set itself an unenviable task.