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NHS indemnity is welcome, but the burden of compensation remains

On 1st April 2019, a collective sigh of relief was breathed in GP surgeries, as a state-backed indemnity scheme for existing clinical negligence claims liabilities was rolled out in England and Wales.

It followed years of unsustainable inflation in clinical negligence awards that in turn led to increasingly unaffordable indemnity subscriptions. The new schemes are welcome, but it’s important to recognise that they don’t address the underlying causes of the burgeoning compensation awards in clinical negligence claims.

NHS Resolution, the body which provides indemnity schemes to NHS trusts in England, and which now includes GPs, reported total estimated liabilities of over £83 billion in its latest annual report. This figure comprises claims paid in the year to April 2019; those settled in the past but where regular future payments will be made; and those where actuaries estimate the value of future claims that have not yet been made relating to past incidents.

These are real figures with a significant impact – NHS money which would ideally go straight to patient care will have to fund compensation awards instead.

The particularly worrying thing is that the £83 billion figure will grow each year, and substantially. Claims inflation is running at almost 10% per year, which suggests that by 2026 total liabilities could amount to £165 billion. To give that figure some context, the running costs for the NHS in England in 2018/19 was £129 billion.

Patients must be compensated for the cost of having all future care provided privately

The massive bill is principally a reflection of the high costs of future care in cases where the patient is seriously damaged and not a reflection of the standard of care. A GMC report in 2018 described health and social care being at a ‘critical juncture’, but doctors were ’still delivering good care in very trying circumstances’.

And GPs are at the forefront of providing good care: despite delivering 1.22 million appointments per day last year, in often challenging conditions, Pulse reported that 96% of patients report confidence in their GP.

The absence of an empirical link between clinical standards and the spiralling increase in the cost of claims is important to emphasise. It’s right to relentlessly pursue the highest standards in patient safety and the new national patient safety syllabus aims to achieve just that. But it’s wrong to assume that advances in patient safety will lead to significant savings in the amount paid out each year in clinical negligence claims.

Control of compensation costs is needed, but that requires legal reform. For example, a 1948 law forces judges to ignore the availability of NHS care when assessing damages.

Patients must be compensated for the cost of having all future care provided privately. If defendants such as NHS Resolution and the MDU were allowed to pay the NHS to look after patients damaged by negligence, they would still get the care they needed and others would also benefit from the boost to NHS funding. Reform of that particular law is long overdue.

Your voice is important and if you’re interested in calling for the types of changes that we say are needed, get involved

Dr Michael Devlin is head of professional standards and liaison at the MDU, and a former GP