On 15 July, NHS Resolution (NHSR) published its Annual Report and Accounts for 2018/19 and as always it is a long, comprehensive and very detailed document. This article does not attempt to analyse each aspect of the report, but simply to pick out the main themes which may be of interest to those dealing with clinical claims.
The report is upbeat overall, both in terms of NHSR’s achievements over the past year and the efforts that have been made to control costs to the tax-payer of clinical and other health related claims.
GP Indemnity Scheme
One of the highlights, of course, in the last year has been the creation of the CNS GP Scheme, by which, claims arising in primary care are brought under the umbrella of NHSR. This has, of course, had a knock on effect in that the vast majority of NHS clinical negligence claims are now under the ambit of NHSR and this will mean that NHS ability to learn from incidents, which is clearly a priority, can be enhanced.
The establishment of the CNS GP Scheme has resulted in NHSR opening an office in Leeds to deal with both that Scheme and some existing CNST claims which it is hoped will lead to costs savings.
Number and value of claims
In terms of levels of claims these have, in fact, been amazingly stable for the last two years. There were some 10,673 claims in 2017/8. This number rose very slightly (by only five claims) to 10,678 in 2018/19. Despite that, however, the cost of harm is put at around £9bn per annum; 60% of which is accounted for by obstetric claims.
The cost of claims is up by around 13%. The discount rate adjustment reducing the discount rate to be applied from 2.5% to -0.75% has continued to be a large factor in the levels of compensation paid particularly in cases of utmost severity. The Report was published on the same day as the latest adjustment in the discount rate was announced. The increase in the discount rate to -0.25% on 15 July may bring some relief, but perhaps not as much as might have been hoped. This will, of course, impact on the total claims provision which is being made by NHSR which is now set at some £83bn.
It is suggested that further savings in future may come from the introduction of fixed recoverable costs. The Report on fixed costs for claimants is due to be presented to the Civil Justice Council around now, with a consultation to follow. One might imagine that this is going to be met with fierce resistance by the claimants solicitors lobby who have already had a significant reduction in income by reason of the abolition of the recovery of success fees following LASPO in April 2013.
Of particular note in the annual report is the reduction in the level of claimant solicitor’s costs paid by NHSR by some 5.2% in the last year. By contrast, however, defence costs have increased by 8.3% which it is thought can be explained by more pro-active approach being taken early in cases in an effort to avert litigation. That being said claimants costs are still typically more than three times that of defence costs.
When it comes to the level of litigated cases, these remain steady despite the continued emphasis on ADR and particularly mediation in an effort to avoid court proceedings. The number of cases going to ADR and mediation are up significantly.
Analysis & risk management
NHSR has deployed a good deal of effort particularly on claims arising in maternity services, focusing on the point of incidents and sharing learning to drive improvements in maternity care. This is clearly a huge priority; not least because of the human cost of significant obstetric incidents, but the financial cost also. Obstetric claims still account for about 10% of all claims, but some 50% of the value of claims. This contrasts with claims arising in an A&E context, which accounts for 13% of all claims made, but only 9% of the value of claims.
There is clearly a huge amount of work being done within NHSR to analyse the causes of obstetric claims, the causes of claims in general, the reasons why people bring claims at all and significant effort is being put into averting litigation at all. One hopes that those efforts will continue and reductions in the levels of litigated claims and their associated costs will feed through in the next year or two.
It is however a sad feature that fraud against the NHS and exaggerated claims made by potential claimants has become more apparent but it continues to be robustly tackled by NHSR. The Report highlights two cases in which NHSR and those instructed by them were able to secure prison sentences against former patients who were attempting to mount fraudulent claims against the NHS.
Overall this is an upbeat and optimistic Report. Clearly NHSR is facing continuing challenges; not least, the operation of its new Scheme, the CNS GP Scheme, and the continuing challenge of containing costs overall from claims and reducing their impact on the public purse.
There is some cause for optimism however. Hopefully the volumes of incidents and claims will, in the next few years start to fall and public money intended for the NHS will be put to its proper use.