The NHS Litigation Fund

I used to enjoy the blog of Anna Raccoon, and I wish her all the best with her ongoing illness (she has cancer), but I believe the fight she is currently waging on behalf of the NHS is wrong. She recently had an article in The Times:

A woman dying of cancer has started a campaign to curb the compensation culture in the NHS despite suffering two cases of medical negligence herself.

NHS Resolution (formerly known as the NHS Litigation Authority) estimates that £56bn could be needed to deal with all cases arising from failures and mistakes made up to March 2016.

She is currently running a campaign on Twitter to prevent people from suing the NHS and “free up” that £56bn to cover ongoing expenses:

Her arguments seem to be that the NHS will take care of anyone who they damage anyway, so no monetary compensation is necessary; that years ago nobody thought of suing the NHS and so there is no need to allow it now; and this pot of money, if freed up for general expenditure, would reduce the chances of mistakes being made in the first place.

None of these is convincing, at least to me. I assume that the NHS is self-insured, meaning it must pay compensation and other legals costs themselves rather than taking out an insurance policy. I don’t know where the £56bn figure comes from but I will further assume that is calculated using actuarial data and is of a size commensurate with the volume of litigation and size of compensation payouts expected. Little wonder they are self-insured, then: no insurance company would touch them.

I pointed out in my conversation with Anna Raccoon that requiring organisations and individuals to either take out liability insurance (or set aside funds if self-insured) is absolutely standard pretty much everywhere: what the NHS is doing is hardly unusual, but because it’s the state religion we’re talking about here, people think exceptions should be made. She made the quite reasonable comment that this £56bn could be better spent elsewhere, but I responded by saying that anyone who has to pay insurance premiums of any kind would think the same thing. I’m sure I could find better uses for my car insurance premiums, for example, but there are good reasons why the law requires me to have it before I take to the road.

There is also the issue that if freed up, this £56bn would be swallowed up in an instant, probably on increased salaries, and when the time came to pay somebody compensation the NHS would not have any spare cash. Ring-fencing it for compensation claims is probably a very sensible idea. The suggestion that nobody should be allowed to sue the NHS is also one I don’t like much. Whereas I believe the litigation culture imported from the US has gotten out of control and needs to be curbed, particularly in relation to silly multi-billion pound awards resulting from class-action suits, being able to sue a government organisation for damages caused through incompetence or negligence is a fundamental right in a civilised country. But given we’re talking about a Soviet-style public service here, a lot of people think the people forced to use it should enjoy a Soviet-style right of recourse. Где книга жалоб?

I am also skeptical of the idea that the NHS can provide all the care it needs to a victim of negligence, something Anna and her supporters insist it can do. They believe if somebody loses an arm in a botched operation, it is enough that the NHS provides all the necessary care thereafter. Even assuming they can and they will – a big assumption – what if the negligence results in a loss that doesn’t need NHS services to resolve? The example I’m thinking of is a woman losing her child giving birth. She doesn’t need any special care afterwards, except perhaps some counselling. But is she not entitled to monetary compensation? From what I can gather, some people think she should just suck it up.

When I mentioned the fact that the NHS’ idea of what constitutes “all the care necessary” after a foul-up might differ from what the patient thinks, and the responses really got to the heart of why it is so impossible to reform the British healthcare system. Basically, most people believe individual patient choice is secondary to the greater good, and they do so because in their personal experience the NHS has been satisfactory. They think that because their personal experience was fine, everybody else should reach the same conclusion. There is no contemplation of the fact that other people’s experiences may differ, let alone that they might have a different opinion on the same experience.

The problem with the NHS isn’t that it is universally shit, because it isn’t. I know enough people who have used it who tell me how wonderful their experience was, and Anna Raccoon is currently singing the praises of those treating her. The problem is that things do go wrong and people are treated appallingly with alarming regularity but there is almost no meaningful recourse and no feedback mechanism to ensure things improve. The way the NHS is set up means there is no incentive to pick up on the failings and eliminate them, and being able to sue is one of the few avenues open to a victim of negligence or incompetence.

If the NHS is finding too much of its budget going to the victims of negligence or incompetence, they should find ways of reducing the instances of negligence and incompetence rather than preventing the victims from suing and forcing them to accept “compensation” in a form of the organisation’s own choosing. If it were not the hallowed NHS we were talking about, the conversation wouldn’t even be taking place.

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27 thoughts on “The NHS Litigation Fund

  1. It is a particularly interesting point from Anna because some of her experiences with the NHS have been the stuff of nightmare. Only her persistence and general bloody mindedness have kept her alive, so her argument deserves proper consideration from such a source. I used to be involved with clinical negligence claims so I know how the NHS fights tooth and nail to defend them – probably because of political ramifications (never apologise never explain). Certainly a speedy admission of error and an apology would disarm many people. Generally to be clear I agree with your view on this.

  2. It is a particularly interesting point from Anna because some of her experiences with the NHS have been the stuff of nightmare. Only her persistence and general bloody mindedness have kept her alive, so her argument deserves proper consideration from such a source.

    It is, and she is a remarkable woman. But like any true believer, she couldn’t bring herself to criticise the way the system is set up and campaign for meaningful reform.

    I used to be involved with clinical negligence claims so I know how the NHS fights tooth and nail to defend them – probably because of political ramifications (never apologise never explain).

    Hence litigation costs are high when they lose.

  3. I thought her point (correct me if I’m wrong) was that the money goes back to the NHS directly. Am I understanding that to mean they get it anyway, or does it mean that the patient will probably just spend it on the NHS?

    The problem with her poll is that it fails to include a 3rd option: hand the money to the patient and let them choose who takes care of them. I hate the idea of the NHS making errors (as it does) and then getting money to fix it. People would go apeshit if a Dyson went wrong, but people had to go to Dyson to get a replacement. We have laws about that sort of thing.

    I had an argument yesterday with someone talking about the NHS and it was pure religion. I don’t go along with it, because I’ve done software consultancy work for the NHS and it’s run terribly. I’m not knocking the good doctors, nurses and so forth (and most of them are and many go above and beyond), but there are bits of it where the management is completely shite. Look at 2 things: reminding patients of appointments and referrals. The NHS still does referrals by post. No-one in any business does that any longer. You have systems (e.g. Jira) that manage cases, workflows, notifications and so forth. This is off-the-shelf stuff. But the NHS is still sending letters. And they’re just starting to do SMS reminders, a decade after dentists had it.

  4. I thought her point (correct me if I’m wrong) was that the money goes back to the NHS directly. Am I understanding that to mean they get it anyway, or does it mean that the patient will probably just spend it on the NHS?

    I think she means the money should be added to the general expenditure pot.

    The problem with her poll is that it fails to include a 3rd option: hand the money to the patient and let them choose who takes care of them.

    I suggested that. The defenders of the NHS are often not keen on patients having a choice. To be fair, Anna never commented on this point herself.

    Look at 2 things: reminding patients of appointments and referrals

    In France it’s all done online. There is a centralised booking system – DoctorLib – which most private and hospital doctors, dentists, etc. subscribe to and you book an appointment through that online. They send you an email which you must respond to and confirm by clicking a link, you get a phone call to remind you, and a text message. It’s very efficient.

  5. I’m not against the class action system myself. It is too costly in many cases for individual persons to seek legal redress against wrongs done to them by large organizations. This is where the class action system steps in. If it didn’t exist then you would get political solutions instead, which hardly seems preferable to me. The fact that some of the awards are ludicrous in size is a different matter, and some cap would seem sensible.

    The only way of getting rid of the NHS it is to set up a parallel private healthcare network, for example by letting companies deduct £1K p.a per employee in order to (part) pay for private healthcare, from their corporate tax bill. In time the private health care sector will become large enough to make a difference. Attempts to fix the NHS by changing this or that aspect of it, are sure to fail for the usual reasons.

  6. Minor point but until 1991, the NHS enjoyed crown immunity. You couldn’t sue it.

  7. “In France it’s all done online. There is a centralised booking system – DoctorLib – which most private and hospital doctors, dentists, etc. subscribe to and you book an appointment through that online. They send you an email which you must respond to and confirm by clicking a link, you get a phone call to remind you, and a text message. It’s very efficient.”

    What about the large part of the population that is not online? That is particularly old people, who probably feature disproportionately among the people who need medical treatment. Some of them have trouble with phones too: clumsy fingers, hearing poor, eyesight poor. A letter printed in a large font is probably best for them – at worst a neighbour, visitor or relative could read it for them.

  8. The problem with the nhs secular religion, is that you have to leave the country to appreciate how utterly dire it is.

    Not surprising, it’s a producer captured monstrosity, largest public employer outside of the Indian railways.
    It’s not run for the benefit of the public. The general public have no idea that despite the ‘best in the world’ nonsense, no sane central govt gets involved in the delivery side of healthcare. It’s a local authority accountability with a public, private mix.
    It’s a stronghold of the statist central planning mentality, planners who kept rationing into 50s ‘purely for the public good’.
    Nhs staff and the well connected actively bypass waiting lists for their healthcare needs.
    What is usually a 9-12 month waiting list for ‘non essential’ cardiac surgery, is operated on in days if you’re a retired Nhs bureaucrat. (seen first hand). I’d love to see some big data analysis across who gets treated when in the system, it would most likely blow the whole rotten edifice wide open.

    Classic example, Facebook posting this morning from a former colleague who was attending a London hospital this morning at 0730 to be the first in what are clearly very long queues for a pathology appointment.

    Rationing for a fundamental service which doesn’t exist down here. Take the chitty down to more than a dozen locations within 10km and walk straight in. Most open 6-7 days and late. Doctor has the results within 48 hours.

    The system has to be turned on its head, money follows the patient.

    It will have to collapse in flames before that will happen though.

  9. I’m not against the class action system myself. It is too costly in many cases for individual persons to seek legal redress against wrongs done to them by large organizations.

    Agreed. My swipe was largely aimed at the high-profile ones in the US like tobacco and asbestos where a handful of individuals and the lawyers get tens of millions, everyone else gets peanuts, and the company must shell out $20bn because it complied with all laws and regulations in force 30 years ago.

  10. What about the large part of the population that is not online?

    I’m assuming there is an offline system as well, possibly the one which preceded the online one. But your comment highlights an interesting difference between France and the UK. In France, there is a good, modern, online system. But something must also be put in place to cater for those who can’t get online, or have poor eyesight. In the UK, there would be no online system because some people can’t get online, and so everybody must be catered for by a single system which assumes everyone is old and infirm.

  11. BiG,

    Anna has asked when the changes were made and why. I didn’t know and her followers seem none the wiser. Interesting, though. I bet it was fun getting the wrong leg hacked off before 1991.

  12. “…that years ago nobody thought of suing the NHS…”

    Not so: ‘years ago’ nobody could sue the NHS because it had Crown Indemnity, also the contract of sale of NHS services is between the State as purchaser and the State as supplier, therefore there was no legal ground for a patient, not a party to this contract, to sue.

    The NHS is under no obligation to supply its services to anyone or in a particular manner – hence waiting lists, lack of GP services, differences in treatment standards, etc.

    It was only an act of Parliament during the Labour Government in the late 1960s that provided a legal basis for patients to sue the NHS for malpractice.

    The solution is to remove the State monopoly on healthcare provisions and payment, so it can be opened up to the discipline of the free market.

    The issue with malpractice awards for any public service is they are paid out of the operating budget which means less to spend on provision of the service, which is a cost to the taxpayer.

    Where a private enterprise is concerned the money comes out of the hides of the shareholders, not those who consume the product. That is an incentive to reduce malpractice.

    There is no incentive in the NHS to reduce malpractice because providers do not pay, the people suing them de facto pay their own awards – which is stupid at every level. But then no cure for stupid as the British love of the NHS shows.

  13. NHS is a jobs/pension scheme disguised as a health care system. It’s NOT meant to actually take care of the so-call citizens.

  14. As an estranged Brit who’s lived overseas in countries with various different private and public healthcare systems, I am constantly astonished by the dogmatic belief in the religion of the NHS displayed on Facebook by some of my school friends. There was some guff on FB today about NHS cuts, waiting lists and how it’s all a Tory conspiracy, vote the scum out etc (ok I’m originally from Scotland so Tory666 is a recurring theme on my FB feed). Every time I explain if you don’t ration by price, you have to ration by availability i.e. long waiting lists, only to have the same person make the same nonsense argument a month later. It’s a lost cause though. As you say, unreformable.
    FWIW the best system of all the countries I have lived in is Australia, where high income earners are “encouraged” by the tax system to take out private health insurance, thereby reducing some of the strain on the public system. Not a perfect system, and a lot less of a no-brainer than it used to be, but still – if you hurt yourself here and need an operation, you just go and get the operation, none of the 12 month wait for an MRI nonsense.

  15. “In France it’s all done online. There is a centralised booking system – DoctorLib – which most private and hospital doctors, dentists, etc. subscribe to and you book an appointment through that online. They send you an email which you must respond to and confirm by clicking a link, you get a phone call to remind you, and a text message. It’s very efficient.”

    It’s almost an essay how long it took me to book my eye referral because I wanted to go to a hospital outside of my trust. Notification by letter, referring me to hospitals I could use (some of which I couldn’t because it needs specialist eye services), then a phone call, then more phone calls because I wanted to go outside the trust area. Things that Hilton have been doing online for 15 years.

    “What about the large part of the population that is not online?”

    It’s not as large as you might think. It’s only after 75 that the numbers really fall off. I did some work for a council adding more web services. They hadn’t bothered because “old people aren’t online” but some research showed otherwise. The big thing was iPads and smartphones. These people weren’t using PCs but had gotten iPads because they were simple.

    And we still had a backup. But that doesn’t matter if you can get enough people online. You get 80% of people using the net (and for many people, they prefer it), you can at least halve the size of your call centre.

    It’s what no-one grasps about the NHS – every pound wasted on some bollocks programme or bad process or shit computer system is a pound wasted on healthcare or making processes better. It’s not about big shiny hospitals and computer systems, it’s about thousands of small improvements. But you’ll never get that with politicians in charge. They’ll always build a big shiny hospital so they can cut the ribbon.

  16. On BiW’s point on having politicians in charge of The Shiny, I read of (probably about 15 years ago now) a doctor, possibly a hip specialist, who discovered that older people who were more active, were generally healthier (natch), but crucially, recovered quicker from operations. Having checked the numbers, he reckoned that an annual spend of about £80,000 on podiatry services would save upward of a quarter of a million a year.

    He discovered that nobody was interested in this, they were all focused on whatever spending would get the headlines.

    Bunions aren’t sexy enough.

  17. “In the UK, there would be no online system because some people can’t get online”: that may be a rational response to the near certainty that a UK system for those who aren’t online would be a telephone answering service that says “fuck off”.

  18. @Tim,
    Sorry, I don’t know the background. It was a few years before I started working for the NHS, but fresh enough in people’s minds that it was still a topic of conversation.

    I can confirm flashing your NHS ID got you seen more quickly.

    @CS, Germany also encourages high earners to take out private insurance (and won’t let anyone below a certain threshold out of the state system), by charging an income-based rate for the public health system. There are two major disadvantages – your future premiums are unpredictable (and effectively unregulated), and should you fall on hard times it is practically impossible to get back into the public system.

  19. @bloke in Germany
    “and should you fall on hard times it is practically impossible to get back into the public system”

    Back when I was living there in the late 90’s that was perennial gripe and as far as I see almost 20 years later it’s still not been sorted. Although I believe it is now theoretically possible to return to ‘compulsory medical insurance’ but -as you indicate- bloody difficult. Before it was an absolute no go.
    On the German TV news tonight the first 100 days of the new Disabled Care Insurance scheme’ (Pflegegeld) were assessed and it seems to be a great success. Which makes the German reluctance to sort out the above ‘pitfall’ of the medical insurance the more incomprehensible. Yes they take their time , often, but when they ‘sort out’ a problem in health care it tends to be well thought out and occasionally even works.

  20. ” But is she not entitled to monetary compensation? ”
    Not being female (thank f***k) and never having lost a child (THANK GOD!) I’m hesitant to ahve an opinion on this but from all I have heard from those who are and have, money is of absolutely no interest nor use and infact feels ‘insulting’. The only things mothers (and fathers too) seem to want in that horrific situation is to know :WHY it happened, WHO was at fault (if anyone was), Will the guilty parties be sacked or hung drawn and 1/4’d and -most importantly of all- that it never ever happens again.
    Those are the things such parents should be entitled to. And the NHS being liable to being sued for vast sums actually hinders that process.
    But as I said, I haven’t been in that situation. I may well be wrong. Perhaps for the mothers of dead children ££££££££ fill the void.

  21. There is also the issue that if freed up, this £56bn would be swallowed up in an instant, probably on increased salaries, and when the time came to pay somebody compensation the NHS would not have any spare cash.

    I don’t even need to have the argument to know how it would go from here:

    A: We’re wasting money on frivolous lawsuits, let’s spend in on healthcare instead!
    B: But what about those lawsuits that aren’t frivolous?
    A: Well, maybe they can leave some money aside, for the deserving claimants.
    B: But how would we tell the deserving from the undeserving?
    A: Well, maybe we could set up some kind of system to figure it out?
    B: Like a court, with a judge and a jury of one’s peers?
    A: By God, you’re right. We’d only be making things worse. Okay everybody, let’s pack it up and go home!

    Just joking, in reality A would just double down.

    Another point: if Brits are to be compensated for medical malpractice with free medical care – well, how is that compensation? Aren’t they entitled to free medical care anyway? Talk about getting paid with your own coin.

    Blocked Dwarf – if the family is poor and/or the parents have other children to take care of, money might not be such an insult.

  22. “Blocked Dwarf – if the family is poor and/or the parents have other children to take care of, money might not be such an insult.”
    I honestly don’t know (thankfully). I was reporting what others, who do, have said to me. The problem in that specific circumstance is , however it tends to be phrased, monetary compensation always/very often feels to bereaved parents as ‘putting a value on something priceless, on their child’s life’. That’s what I’ve been told and I can ‘see’ their point. There is no compensation that will compensate for that, only the feeling that their child may not have died in vain, that their death may prevent others having to go through the same thing, that the guilty will be punished.

  23. PS. I’m pretty sure that a poor family who receive compensation for the death of their baby will find that it does very little to help them financially. Any compensation over a certain amount (a few K if I recall) will be deducted by the DWP £for£.

  24. RE: not appreciating that the NHS is nothing special until you’ve been overseas. In my case it took going overseas, living in a few countries, marrying a doctor, bringing her back to the UK, and then hearing her views on the NHS having worked in it, to fully understand its problems.

    And yes, the near-religious attitudes it inspires in otherwise-sensible people are incomprehensible to me. Its performance by international standards is mediocre, and looks good only in comparison to the awful US system. People continually invoke the poor results delivered by US healthcare a justification for having it, but many countries have better outcomes than us without having the kind of monolithic bureaucratic system that the NHS represents, and allowing greater choice.

    I remember a discussion with a colleague about healthcare in Germany. They kept talking about how good the “German NHS” was, I explained to them that there was no such thing and they responded with amazed disbelief. They were under the impression that Germans spent more money on “their NHS” than we did and this was the reason for their service being better. I saw the same with someone I knew who had received healthcare in Poland – again I had to explain to them that there is no “Polish NHS” (though there is the NFZ – essentially a public funding system), that most Poles have private insurance or at least use private clinics, and that they had probably been treated in a private clinic.

    RE: malpractice. Someone I know suffered the very sad death of their son when he was only two years old. Whilst the ultimate cause of death was a brain tumour (which had gone undiagnosed for months by their GP despite several visits until he started falling over) the actual death was due to internal bleeding following an operation on the tumour. The poor child was on a heart monitor that ought to have given warning enough about this to take action – but the heart monitor had been switched off.

    You might imagine that in this kind of circumstance heads might roll. You would imagine wrongly. Instead nothing was done by the NHS that could be seen, no corrective measures taken were taken that the parents were told of.

    Naturally and understandably the parents did not want to make a fuss out of it and simply wanted to get on with their lives and raising their other children. No monitary compensation would have been of any use anyway, and the disease had been of a horrible enough nature that death at that point, rather than after months of chemotherapy and radiotherapy, a quick death wasn’t the worst thing that could happen.

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