Compensation Payments for Clinical Negligence

05 July 2002

The health and personal social services (HPSS) (the Boards and the Trusts) in Northern Ireland have paid out £55 million in compensation for clinical negligence claims over the 10 years to 2001. A report published today by the Assembly's independent auditor John Dowdall, states that, although the annual number of new claims has remained relatively static over recent years, the overall potential burden of clinical negligence increased significantly. An estimated potential liability of £121 million at March 2001 was registered against 3,532 outstanding claims. This figure included contingent liabilities of £22.7 million, where there is an uncertainty that the liability will ever occur (paragraphs 1.8, 1.9, 2.3 and Fig. 1).

The Department has welcomed this Report. In its view, it has been timely and should assist it in its ongoing efforts to secure improvements in the quality of services provided to patients as well as improving procedures surrounding the administration of clinical negligence compensation claims (paragraph 3 of the summary).

In the 7 years to March 2001, when almost 4,200 new claims were made, the HPSS cleared over 2,100 claims, 670 resulting in compensation (2.3 and 2.25). Of the 538 claims for which the Audit Office was able to obtain details of the settlement amounts and fees, the overall cost was £32.3 million, which included £9.7 million in legal costs (2.28).

We were surprised that information on clinical negligence cases has not, to date, been held centrally, but has been held only at Boards and Trusts. The Department of Health, Social Services and Public Safety advised us that this was in line with the practice elsewhere in the United Kingdom. However, in addition to taking steps to ensure that both Boards and Trusts hold comprehensive information on all outstanding claims, it recognised the need and value of a central database. We would urge the Department to implement this as soon as possible, so that it is able to disseminate basic information about claims, in summary form, throughout the HPSS (2.13 to 2.16).

Mechanisms also need to be introduced whereby lessons to be learnt from the wide range of adverse clinical incidents that occur across Northern Ireland can be shared with clinicians and administrators elsewhere in the HPSS. Where considered necessary, procedures can then be either introduced or adjusted (2.55).

The Audit Office investigated the time taken to process 322 recent cases where compensation was paid. There was an average time of 4 or 5 years to settle a claim, while some exceptional cases ran for over 10 years. This represents a lengthy timeframe, although we recognise that delays in the processing of claims are usually beyond the immediate control of the Department and that, because they are usually more complex, they take longer to process. There is also some evidence that some claims are settled more quickly here than in England. For the relatively small number of cases that reach Court, redress for patients who believe they have been the victims of clinical negligence can take almost twice as long to resolve as other actions brought before the same Courts (3.8 to 3.14).

We also examined 20 cases more closely to illustrate some of the factors that influence the outcome of cases. The factors which resulted in compensation were not solely clinical, but also weaknesses of a non clinical nature. We recognise that, if unlimited resources were available to the HPSS, significant improvements could be made, but we consider that many of the clinical and non-clinical factors are avoidable (3.17 and 3.30 to 3.34).

The processes for handling medical negligence claims have not been satisfactory in minimising delay. It is important that, where the standard of care was clearly reasonable, the Health Service should defend its position robustly (3.51). Whilst an excessively adversarial environment has not developed here to the same extent as in England and Wales, the views expressed to NIAO show that there is a broad consensus within the HPSS for a change away from the current adversarial arrangements (4.10 and 4.19).

The Civil Justice Reform Group, established by the Lord Chancellor, completed a review of the Civil Justice system in Northern Ireland in 2000. The Group considered the issue of clinical negligence issues separately and concluded that there was a general lack of cooperation between parties (4.10 to 4.11). We note that the Northern Ireland Court Service will initiate and drive forward a pre-action protocol consultation process and NIAO has recommended that the Court Service fully engage with the Department during this process (4.23).

The Department has been aware of the need to minimise exposure to clinical negligence and have taken a variety of initiatives. This included an independent survey in 1999 of the risk management arrangements in place in individual HPSS organisations. The consultants identified good progress in a number of areas by some HPSS bodies, but also gaps. These gaps need to be addressed by the Department and the HPSS to ensure consistent good practice across the service on risk management (5.4 to 5.8).

NIAO welcomes the various initiatives that the Department has been taking to enhance quality and standards of care. These initiatives are viewed by the Department as part of a much wider agenda to achieve improvements in services and in the experience of people using those services (5.13). The initiatives include arrangements for recording adverse events. Such arrangements need to be clear and unambiguous, so that all adverse events are disclosed. This is not just for the purposes of accountability, but also as a means to improve standards and avoid future error (5.32).

Compensation Payments for Clinical Negligence