'Litigation culture' is making Britain less safe, says report
Jeremy Laurance is a writer on health issues. He is former health editor of The Independent and the i and has covered the specialism for more than 20 years. He thinks the harm medicine does is under-appreciated, the harm it prevents over-rated, and that cycling works better than most drugs. He was named Specialist Journalist of the Year in the 2011 British Press Awards.
Monday 10 September 2012
When a child falls over and cuts themselves in the playground, headteachers brace themselves for a writ from the parents. If a medical test for cancer is delayed, the standard response from patients is to sue.
But instead of making Britain a safer place - the expressed intention of most litigants - the "litigation culture" is instead making it less safe, according to a report published today.
The threat of litigation is undermining professionalism, reducing transparency and increasing the financial burden on public services such as health and education while increasing discomfort, inconvenience and anxiety for those who use them.
Sociologist Frank Furedi and writer Jennie Bristow say in the report, published by the Centre for Policy Studies, that too many legal cases are being brought without realistic hope of success.
Of 63,800 legal claims against the NHS since 2001, 2000 - 3.2 per cent -had damages approved or settled by a court and 28,700 were settled out of court. In 2010/11 alone, almost 3,000 cases were closed without any damages being paid, incurring £10.9 million in legal costs
In March 2011, the NHS Litigation Authority estimated it faced potential liabilities of £16.8 billion, much of it in legal costs. In January 2012, the Government had to bail out the organisation with an extra £185 million to cover the cost of legal claims and fees.
Countless hours of paperwork and procedures are now spent by professionals in litigation avoidance, the authors say, to defend organisations against claims.
They quote the head of a Sussex nursery school, worried about receiving a bad Ofsted report, who said: "I hate the culture of creating policies in fear of getting sued. I want to have a health and safety policy to keep the children healthy and safe, not to cover my back."
Professor Furedi said: "Demanding recompense for accidents is now perceived not only as a common sense way of gaining financial compensation, but as a way of holding public services to account. "
"The increasing fear of litigation is extremely damaging to the professionalism of doctors, nurses and teachers. It erodes professional autonomy, stifles innovation, leads to defensive practices in both hospitals and schools and encourages greater bureaucracy. "Best practice" is now defined as having checked all the boxes in a quality assurance form rather than doing what is best for the parent or pupil."
The authors say that reining in "ambulance chasers and greedy lawyers" will only deal with the symptoms of the problem. A change of culture is necessary which sees best practice measured in terms of innovation in teaching or medical care, rather than the absence of complaints or litigation.
They call for a no-fault scheme to compensate those who have suffered harm as a result of accident or injury. However, previous efforts have foundered.
Efforts to reform the medical negligence scheme by the Government's former chief medical officer Sir Liam Donaldson in a report in 2003 came to nothing when agreement could not be reached on how to implement his proposed no fault scheme without massively increased costs.
Victims of medical errors with a high chance of winning heavy damages in court were not prepared to sacrifice part of their pay-outs to create a fairer system for those harmed in accidents where there was no one to blame.
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