A reminder of the starting point

On 5 July 1948 the NHS was established[1]. The principles of the NHS were to provide a comprehensive service funded by taxation, available to all and free at the time of use. Despite significant resistance within the medical profession to start with[2], it was a wonderful aspiration and a significant achievement.  British society has been built around reliance upon a free health service.  Of course there are adjuncts to the NHS but the bedrock of our health service is, quite rightly, provided by the National Health Service.

Is it appropriate to consider pursuing a negligence claim against a free service?  Is it morally right to criticise a Health Service we have never been charged for? Is the NHS entitled to provide a “lower standard of care” than a service we would pay for?  Just because there is no commercial transaction does this mean we have to accept whatever shortcomings exist within the system? 

It cannot be right for a society where citizens are told the health service will be free at the point of provision, to expect them to accept a standard of service lower than a privately paid service.  Our starting point has to be to assess what a reasonable standard of care is (whether or not provided by the private or public sector) and assess whether that standard has been attained. 

The starting point in assessing whether an acceptable standard of care has been provided was established in the case of Bolam –v- Friern Hospital Management Committee[3].  McNair J stated:-

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art….Putting it the other way round a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion which takes a contrary view”.

Essentially, a Claimant will fail if it can be shown that a reasonable responsible body of practitioners would have made the same decisions as the Defendant. It therefore remains for the Claimant to clear an incredibly high hurdle to even get to the starting post of a claim.

Notwithstanding how difficult it is to pursue a claim, the myth of a compensation culture is still associated with clinical negligence claims. Whilst the Government’s own research [4] has established that there is not a compensation culture, the myth persists and thus the following statistics are worthy of reinforcement:-

• 1,018,773[5] vs 8,885[6] = Number of adverse incidents within the NHS vs Letter of Claim received by NHSLA
• Clinical negligence claims represent only 1.5% of personal injury claims reported to the CRU.[7]
• 3% of complaints made in primary care services became claims in negligence.[8]
• £1.6bn - £4bn –v- £400 million = estimated cost of implementing a “no-fault scheme” –v- actual cost of clinical negligence claims.[9]

Whilst the compensation culture myth does remain in the public perception, attention should not be diverted away from failings within the system and the issue of patient safety.