Stop living for so long.

The comment is rather facetious but is symptomatic of the report released this week by the National Audit Office regarding the rising costs of clinical negligence to the NHS.

In fairness the issue is a complex one and goes beyond the scope of the powers that the National Audit Office has but that is not really an excuse to put out a report that deals in platitudes and offers no practical solutions.

The first step was to actually diagnose the problem and here three main factors were identified:

1. An increasing number of claims
2. An increase in the amount of damages
3. An increase in legal costs

It is not enough to simply list these factors without explaining why they contribute to increasing costs to the National Health Service and while the report does make an attempt to do this it is only able to do so to a limited extent. As an example the rising number of claims is blamed on greater ‘NHS activity’ but this tells us very little about the actual strains on medical services and how exactly they are struggling to cope. Is it simply that there are now more patients than ever before or that there are less doctors and nurses meaning they are having to complete more work with less resources?

By being so vague and careless with the language that is used in the report and the way that factors are defined the door is opened for these very real problems to be politicised by all sides. If more patients is the problem then this adds to the argument in favour of curbs on immigration like those put forward by Tony Blair this morning. If there is too much pressure put on medical staff then this is a reason for more NHS funding.

In fact we are not even told which parts of the NHS are particularly suffering as a result of this increased activity. There is some hint that the failure to meet Accident & Emergency waiting times has a negative effect but there is little clue as to what patients are more likely to be a victim of clinical negligence and then actually bring a case. The report concludes that birth injury claims are especially costly to NHS Trusts but again that tells us very little about the frequency of such claims.

Another contributory factor that has led to expenditure by the Department of Health on clinical negligence rising to £1.6 billion a year is the way that the legal system itself is set up. In particular the growing popularity of ‘no-win-no-fee’ agreements has meant more claims being brought forward, those claims having greater legal fees associated with them for the NHS and more compensation being paid out overall.

The problem is that this should no longer be the case, or at least that is the theory. As many people are aware the legal infrastructure in the UK was shaken up by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that came into force in April 2013.

It is stated that this ought to reduce the number of clinical negligence claims but there is not enough evidence of this as yet. This is a vital piece of information that is missing from the report for no good reason. How can it be that more than four years after the reforms have come into effect there is not enough data to know what the financial implications for the Health Service are?

In fact it is clear that these underlying questions are the main thing to take away from the work of the National Audit Office. NHS Resolution who are in charge of managing these claims and these costs simply have no control or ownership over the vast range of claims that are brought by patients every year and this is the real reason why total expenditure has spiraled out of control.

Without enough information to actually get any clear answers it is unsurprising that the conclusions that the report does manage to pull out are vague and unhelpful. What is disappointing is that the National Audit Office did not seize the opportunity to hold the legal arm of the NHS to account for its poor case management and one-dimensional, short-sighted approach.

With money already tight within the Health Service it is incumbent on NHS Resolution to not only be fully accountable for their caseload but also for the approach taken to claims for clinical negligence in general.