Readers in England will be aware of the role of the NHS Litigation Authority (NHSLA), the body which manages litigation on behalf of the NHS in England. In Scotland, the equivalent is the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS), and in Wales there is the Welsh Risk Pool. While NHSLA covers the whole of the work of the NHS in England, its recent annual report highlighted some areas of interest for midwives.
The estimated financial liability for litigation in the NHS was reported to have almost doubled in the last year. In March 2015, total provision for claims was put at £28.6 billion; in March 2016, the estimated total was £56.4 billion. The chief executive of the Medical Defence Union (MDU) was reported as saying that the NHSLA's published figures represented ‘a compensation crisis’:
‘The NHS is sitting on a time bomb of future claims and legal reform is the only way to address it and to keep money within the NHS for treatment of patients.’
The NHSLA's Chair agreed that legal reform is needed, but stressed that the bulk of this increase—some £25.5 billion—was accounted for by a change to the Treasury's discount rate. The discount rate is a financial mechanism used by the government to account for future price rises owing to inflation or other reasons. However, even if this £25.5 billion is set aside, there is still an increase of £2.3 billion allocated for new claims that are known about. Even within the context of health service expenditure, that is a lot of money, and it has to come from somewhere.
The NHSLA report also notes how negligence claims (and their value) are spread across the medical specialties. It reveals an unchanging picture here: ‘obstetrics’ accounts for 10% of claims, but 42% of the value of claims—or about £1 billion of the projected £2.3 billion set aside for new claims. These totalled 10 965 in 2015/16, suggesting that over 1000 new ‘obstetric’ claims had been filed in the last year. While past experience suggests that the majority will not succeed, each claim has to be investigated and followed through—an enormous (and very expensive) administrative task.
The report does not provide much detail about the specifics of individual claims, but it does present some vignettes. These include one called ‘Defence of 24 year old case’. The report notes
‘the many difficulties inherent in defending allegations of negligence dating back almost a quarter of a century, including tracing records and the failing health and fragility of elderly witnesses.’
Similar ‘long tail’ cases have been discussed in this column before (Symon, 2016). What is of interest here is the focus on the financial implications of litigation. The report states that, had the claimants succeeded, this would have cost the NHS in excess of £6 million.
‘Obstetrics accounts for 10% of negligence claims, but 42% of the value of claims—or about £1 billion of the projected £2.3 billion set aside for new claims’
The NHSLA has responsibility for all litigation involving the NHS in England, and while the following case was obviously very serious for the midwife concerned, its discussion after claims of such huge amounts of money is a real contrast. The report notes that a community midwife had sued her employing authority for not providing her with crampons after she had slipped on ice when going to visit a woman at home. The responsibility of employers to provide appropriate clothing for the workplace is well understood, especially if that workplace can be hazardous. The midwife argued that she was ‘at work’, and so her employer was duty bound to provide her with footwear to reduce the risk of slipping.
The Health and Safety Executive (HSE) notes that employers have certain responsibilities with regard to providing (and training people in the use of) personal protective equipment (PPE) at work. It states:
‘PPE is equipment that will protect the user against health or safety risks at work. It can include items such as safety helmets, gloves, eye protection, high-visibility clothing, safety footwear and safety harnesses…’
Dutiful employers would be expected to comply with PPE regulations. In its defence, the Trust produced evidence that it had policies relating to appropriate footwear, lone working and slips and trips, along with risk assessments and training. The employer acknowledged that the midwife was at work, but claimed a distinction between
‘work related risks and other risks which a worker may be exposed to in the same way as any other member of the public.’
In other words, the risk of slipping on ice applies to everyone who walks outside when it is icy: it is not exclusively work-related, so is not covered by the regulations. The court agreed, noting that if the midwife were correct in her claim,
‘any employee who, during their working day, had to venture outside their employer's premises in inclement weather would require their employer to provide protective footwear, and that this was too high a threshold.’
This discussion is not intended to trivialise this situation, only to make readers aware of how the law may operate. Health professionals work within a legal environment, and it is necessary to be aware of how the law impinges on their practice—and, equally, to understand what the law's limits are.