A response to the Times Health Commission’s NHS recommendations

The Times Health Commission’s 10 recommendations to save the NHS was published on Sunday. The report is the result of a year's worth of work carried out by the Commission in an attempt to find solutions to a number of problems the NHS reportedly faces.

As a clinical negligence lawyer who acts for families that have suffered avoidable harm, a former radiographer that worked in the NHS for 10 years, my focus is to improve patient outcomes and safety.

Whilst some of the recommendations are welcomed, I have concerns about point five, the recommendation suggesting introducing a no-blame culture, instead of allowing families to have the option of bringing legal action.

My first concern is that it is unclear from the report who exactly the commission consulted with during the year-long review, but one person I believe should have made the list is Robert Francis KC. He published a report in 2013 which considered the causes of the failings in care at Mid Staffordshire NHS Foundation Trust from 2005 to 2009. The Francis Inquiry report made 290 recommendations, including “openness, transparency and candour throughout the healthcare system”. While The Time’s report suggests ‘”no-blame” would encourage the NHS to learn from its mistakes, it does not detail how this would be the case. It is my view that the opposite would happen and taking a “no-blame” approach to compensation would fly in the face of Robert Francis’ recommendation.

I also cannot see any reference to AvMA, a charity which has supported families whose loved ones suffered avoidable harm and could provide insight into the impact a “no blame” policy would have on the NHS. According to the National State of Patient Safety 2022 report, there were estimated to be between 19,800 and 32,000 cases of ”probably avoidable” significant harm to patients in England in 2020. I suspect the reality of the numbers is much higher, as it stands, not all of those affected seek compensation. Assuming that, were The Times’ recommendation to be implemented, there would be a duty of candour with every case, and all those had been avoidably harmed would receive a frank admission and be compensated appropriately, my concern would be bankrupting the NHS.

Secondly, who decides whether there has been avoidable harm? Would it be doctors involved in the care? Or would there be an independent body to give the family advice? Even with the Health Services Safety Investigations Body (HSSIB), the NHS will still fight a case, despite independent advice saying the care was substandard. In my view, a no-blame compensation model will not help families get answers or ensure that lessons are learnt, as the NHS will not be held accountable for ensuring a duty of care.

A further point which concerns me is that “no-blame” system would be applied to the NHS and not to private medical care. This would create further division in the system, where poorer families are less able to access justice than those who can afford private care.

If this recommendation were to be implemented, are we saying that the law of Tort does not apply to medical professionals, essentially putting them above the law? Their duty is only to have to give reasonable and responsible care like every other professional person.

I am sure that the vast majority of people want things to improve in the NHS as soon as possible, but we have to think carefully about the options available and make sure that any changes made truly do benefit patients. The systems for redress currently in place may not be perfect, but it is my view that the proposal by The Times is too simplistic. To introduce changes that both improve the NHS and are fair to patients, any investigating commission needs to engage with those who work with families that have suffered avoidable harm. We should not blame the families for wanting access to justice, answers and financial support for their avoidable injures. The focus needs to be improving care and reducing avoidable harm, the cost of litigation will reduce.