Healthcare Features
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The National Health Service Litigation Authority saw newly reported clinical negligence claims surge by around 30% in 2010/11, an increase its chief executive blamed on the profitability of the work for claimant solicitors and ‘claims farmers’.
The authority’s annual report and accounts said there were 8,655 reported claims over the twelve months, up from 6,652 in 2009/10.
The NHSLA also revealed a 6% rise in non-clinical claims to 4,346.
Writing in the annual report, chief executive Steve Walker said: “Multiply those increases by the significantly above inflation rise in cost per claim and you will appreciate why we are very pleased to have been able to hold the increase in contributions for 2011/12 to the forecast figure of 10%.”
The NHSLA suggested that the costs claimed by claimant lawyers “continue to be significantly higher that those incurred on our behalf by our panel of defence solicitors”. This continued to be a major concern, it said.
The annual report added: “The availability of Conditional Fee Agreements and the continued increase in their use by claimants in clinical negligence claims has also meant that claimants’ costs are almost invariably disproportionate, often significantly, to the amount of damages paid, particularly in low-value claims.”
In the 5,398 clinical negligence claims closed by the NHSLA with a damages payment in 2010/11, the authority paid over £257m in total legal costs – “of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers”.
The annual report also revealed that:
- There was a reduction in 2010/11 in the time to resolution across all of its liability schemes, compared with 2009/10
- The number of outstanding incidents and claims across all its schemes at year end increased by almost 9% on the previous year
- The NHSLA paid out £729.1m under its Clinical Negligence Scheme for Trusts last year, and £134.3m under its Existing Liabilities Scheme and its scheme for covering liabilities against the former regional health authorities.
- £42.4m was also paid out under the authority’s Liabilities to Third Parties Scheme and £5.5m under its Property Expenses Scheme.
Walker added that the NHSLA was “delighted” that the Ministry of Justice was taking forward the recommendations of Lord Justice Jackson in relation to the costs of civil litigation.
“We believe very strongly that a regime which allows success fees and the recoverability of After the Event insurance premiums makes litigation so profitable that solicitors and so-called ‘claims farmers’ are drawn to the market thereby fuelling the rise in claims volumes we have experienced,” he said.
Philip Hoult
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The Equality and Human Rights Commission (EHRC) has unveiled an online resource about human rights to help public sector bodies in England and Wales and organisations carrying out public functions and advocacy.
The resource covers nine areas: adult social care; children's services; health; housing; education services; local government; criminal justice; courts and prisons; policing, and immigration and asylum.
The EHRC has also outlined a number of common and recurring themes from the guidance “that should be applicable to everyone”: They are:
- Positive obligations: “The Human Rights Act means that all public authorities have an obligation to ensure that people's rights are respected in all that they do”
- Human rights as an aid to decision making: “Human rights principles can strengthen decision-making at both corporate and service levels and help to prevent service failure,” the EHRC said. “Human rights can provide an important 'check and balance' – helping to determine proportionate action, especially where the interests of different parties conflict”
- Proportionality: “The principle of proportionality is at the heart of a human rights framework,” the Commission argued. “This can be summarised as 'not using a sledgehammer to crack a nut'. It ensures that any restriction of a person's human rights is kept to a minimum”
- Assessing and managing risk: “Human rights can be used to ensure that risk management practice is lawful, balances the interests of all those involved, and is proportionate,” the EHRC said. Human rights can be infringed when public authorities are excessively risk averse as well as when they fail to act to prevent risk, it added
- User and public involvement: “The inclusion of service users, is an essential part of a human rights based approach”
- Equality and good relations: “Viewing equality issues through a human rights lens can help to shift the emphasis from negative compliance to positive cultural change”
- Building a human rights culture: “Leadership, senior level commitment and engagement, and effective training in human rights principles and practice are fundamental to any organisation committed to compliance with the Human Rights Act.”
The EHRC’s 29 pieces of guidance bring together learning materials about the human rights obligations of the public sector and how to successfully implement them. “These materials include tried and tested examples of how to consider human rights in public service delivery as well as case studies, informal guidance, inspection standards and impact assessments,” it said.
The Commission has also included materials on supporting the human rights of particular groups such as older and disabled people and refugees and asylum seekers.
There are summaries of each publication to highlight the key human rights messages and other essential information. These were produced by the Human Rights and Social Justice Research Institute at London Metropolitan University.
Philip Hoult
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An NHS trust has failed to establish that there was a TUPE transfer in a case where residents of a care home it operated were rehoused in individual homes.
In the case of Nottinghamshire Healthcare Nhs Trust v Hamshaw & Ors (Transfer of Undertakings: Service Provision Change) [2011] UKEAT 0037_11_1907, the 12 claimant care workers were formerly employed by the trust at Hillside House, a care home for adults with learning disabilities.
The home was closed on 31 March 2010, with the residents re-housed into homes of their own. Their care was to be transferred to two independent care providers, Perthyn or Choice Support.
The care workers were offered jobs with the new providers, in most cases to sleep in at the service users’ homes. They were also expected to assist the former residents with managing their homes and domestic tasks such as cleaning, shopping, food preparation and cooking.
The care workers were told by the NHS Trust that this was a relevant transfer within TUPE and that their employment was to continue with Perthyn (in the case of two employees) and Choice Support (for the ten other members of staff). Nottinghamshire Healthcare then proceeded to stop paying them with effect from 1 April 2010.
The claimants brought claims for unfair dismissal, pay in lieu of notice, outstanding holiday pay and a contractual redundancy payment. Their union, Unison, also sought a protective award for failure to consult about the proposed transfer.
The Employment Appeal Tribunal concluded that Judge Morgan at the Employment Tribunal was entitled to find there was no transfer.
Mr Justice Bean rejected the Trust’s argument that the economic entity formerly comprised in Hillside House, although “fragmented” post-transfer, had retained its identity.
In addition the judge ruled that the services provided by the care workers were not fundamentally or essentially the same after the change as they had been before.
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The NHS Commercial Alliance has selected 11 law firms to one of the largest legal services framework agreements in the country, valued at £20m for up to four years.
Members include acute, primary care, mental health and ambulance NHS trusts in the south east, south central and east of England regions.
The framework agreement, which was awarded last month, covers eight lots. The panels in full are as follows:
- Primary care: Beachcroft; Bevan Brittan; Hempsons; Mills & Reeve; Browne Jacobson
- Mental health: Bevan Brittan; Hempsons; Beachcroft; Mills & Reeve; Browne Jacobson
- Corporate and Commercial: Bevan Brittan; Michelmores; Beachcroft; Addleshaw Goddard; Hempsons
- Employment: Bevan Brittan; Beachcroft; Michelmores; Hempsons; Birketts; Mills & Reeve
- Property: Bevan Brittan; Michelmores; Hempsons; Beachcroft; Mills & Reeve
- PFI/PPP: Bevan Brittan; Michelmores; Hempsons; Beachcroft; Bircham Dyson Bell; Birketts
- Governance: Bevan Brittan; Beachcroft; Hempsons; Mills & Reeve; Addleshaw Goddard
- Health: Beachcroft; Bevan Brittan; Hempsons; Browne Jacobson; Capsticks; Mills & Reeve; Berrymans Lace Mawer
The NHS Commercial Alliance estimates that 7% savings will be achieved in the three regions where the framework agreements are in operation.
Philip Spicer, Associate Procurement Director at the NHS Commercial Alliance, said: “The framework offers all trusts the opportunity to engage with the leading legal companies whilst appreciating the benefits that this brings, both commercially and contractually.”
The NHS Commercial Alliance is a strategic partnership between NHS Commercial Solutions, PRO-CURE CPH and East of England CPH, three NHS collaborative procurement organisations.
Last week NHS Trusts in Lincolnshire launched a procurement exercise for their own legal services framework agreement.
Philip Hoult