Maria Caulfield MP, under-secretary of state for patient safety and primary care, told an evidence session of the health and social care select committee in February that rising legal costs were to blame for the increasing burden of litigation on the NHS. However last week Caulfield wrote to the committee to retract her comment that legal costs were ‘the significant piece of why they are rising’. In fact, the minister conceded later, claimant costs have levelled out for the past five years - and in fact fell in 2020/21.
‘Although rising legal costs have been an important driver of costs over the last 15 years, the main driver has for the last few years been rising compensation payments,’ said Caulfield.
The mistake may seem minor, but provides an insight into government thinking on claimant costs. Consultation has begun on imposing fixed recoverable costs for cases worth less than £25,000, and ministers may come under pressure to address the issue further when the health committee publishes its report on the future of NHS litigation.
Claimant representatives have urged the government not to be blindsided by the fact that claimant costs are higher than defence costs, saying the comparison is irrelevant because it will always cost more to discharge the burden of proof.
In written evidence submitted to the committee on fixed costs, the Society of Clinical Injury Lawyers said the government’s plan was a ‘flawed approach’ and disproportionately affects poorer injured patients.
The SCIL submission said: ‘Wealthier clients can afford to ‘top up’ inadequate levels of fixed costs. The consultation is wrong to say it has no impact upon damages – clients will have to pay the shortfall in their costs, versus the fixed costs proposed, from their damages and so will end up with less.’
A straw poll of SCIL members found 70% of firms would be forced to withdraw from working in the field if the government’s proposals were to be introduced.
The Association of Personal Injury Lawyers accused the government, effectively the defendant in most clinical negligence cases, of a ‘breathtaking display of self-interest, putting unfair restrictions on patients, bereaved families and their representatives’.
APIL executive committee member Suzanne Trask added: ‘In its obsession with the financial cost of clinical negligence to the NHS, the government repeatedly fails to recognise that the NHS’s negligence is the reason why patients must claim compensation for their injuries. Yet again, any effort to tackle that problem is conspicuously absent from this consultation.’
