Ed Fletcher, CEO of the UK’s medical negligence and serious injury law firm, Fletchers Solicitors, argues that fixed fees will create an opportunity to improve care standards and bring the number of medical negligence claims down

In 2014, the Government introduced its ‘Duty of Candour’, aimed at encouraging a more honest and open NHS that would admit when things went wrong. However, recent examples show that some parts of the NHS are still taking a ‘Don’t Ask, Don’t Tell’ approach when mistakes do occur. Examples include the Southern Health Foundation Trust (which failed to investigate the unexpected deaths of more than 1,000 people) and the report by Dame Julie Mellor, the parliamentary and health service Ombudsmen, which found that in 73% of cases investigated by her office (where there was a clear breach of a duty of care), the hospital had previously reported that no error had occurred.

It could be argued that such an attitude is a misguided response from NHS management to limit the NHS’ rising legal bill (£1.3 billion annually at the last count) and in this respect some areas of the legal profession must shoulder a portion of the blame. However, government consultation is beginning on a new policy that could pave the way for a more open relationship between the NHS and lawyers. Fixed fees, set to take effect before the end of the year, will place a cap on the amount lawyers can charge for cases where damages are below a certain amount. A limit would apply to all claims but the most extreme cases, which have been raised as a result of medical mistakes. For the NHS, this should see a reduction in the number of legal claims brought against it, (with weak claims no longer financially beneficial to pursue) and also lower costs in cases where the NHS admits fault or is ruled against by the courts.

Not only this, but as a lawyer who sees the devastating effects medical negligence has on the lives of victims, this is also an opportunity to increase openness and transparency within the NHS. The medical profession must accept its duty of care to the public and take a more active role in ensuring patients get justice for their injury. This will be crucial if the new system is to operate fairly.

Accepting fault at the earliest opportunity (in keeping with the promised Duty of Candour) means that time and resources can be focused on achieving a fast and fair resolution. Failure to do so may mean that some complicated claims are not pursued, particularly if the time and money needed to properly investigate them would exceed the fixed fee cap. Also, in complex cases, greater openness and cooperation (such as sharing a single expert witness to judge on medical matters) would prevent patients’ cases being unfairly disadvantaged.

Restricting access to justice would cause serious harm to the injured patient, adding to the distress and upset already suffered as a result of their injury. It would also cause real harm to the NHS, damaging its reputation as a national institution that is relied on by millions every day. The key for the fair fixed fees process is to encourage good behaviour. Co-operation and reasonableness are a must if the system is to achieve the right result.

By being open and transparent about mistakes, this will undoubtedly help to improve healthcare standards preventing future injury to others, along with relationships between patients and medical staff. It will also go towards ensuring NHS institutions are able to properly exercise their duty of candour. With the fixed fee system still in the consultation phase, we are yet to see how it will be implemented and whether the new rules will include a provision to encourage greater openness (e.g. rewards for behaviour that bring cases to a swift and fair resolution).

However, it’s important to recognise that for the new regime to be successful, both the medical and legal professions need to work together to achieve the right outcomes and help victims to get on with their lives. Fixed fees present the opportunity for both sides to pull together to improve care standards and bring the number of medical negligence claims down. A decrease in mistakes means fewer patients harmed. And who can argue with that?

Established in 1987, Fletchers Solicitors is a North West-based personal injury law firm which solely specialises in motorbike accidents, serious injury and medical negligence law. The firm currently handles one in ten of all clinical negligence claims in the UK. Over the last five years, Fletchers has expanded to build a highly successful and innovative medical negligence department, which has already grown to become one of the leading practices in the UK.For more information, please visit www.fletcherssolicitors.co.uk website here.