Set back under Colonnade Walk on Buckingham Palace Road, just behind Victoria Station, sits a nondescript, anonymous-looking glass-fronted building. This building houses a team of people responsible for paying out nearly £1.5 billion in the financial year 2015/16 to settle clinical negligence claims on behalf of our National Health Service (NHS). Who are these people? Together, they make up a public body called the NHS Litigation Authority, or the NHSLA for short.
The NHSLA is a not-for-profit arm of the NHS that acts on behalf of its member organisations to manage negligence and other claims against the NHS in England. Established in 1995 as a Special Health Authority, it now provides indemnity cover for legal claims against the NHS, assists the NHS with risk management, shares lessons learned and provides a range of legal and professional services to its members — all of which makes the NHSLA to all intents and purposes an insurer, albeit one that makes no profit.
Meanwhile, the Clinical Negligence Scheme for Trusts (CNST) handles all clinical negligence claims made against member NHS bodies in respect of incidents that took place on or after 1 April 1995. Although membership of the scheme is voluntary, all NHS trusts in England currently belong to CNST. In 2013 the scheme was opened to independent sector providers of NHS care and the scope of its cover was extended to include the cost of representation at inquests.
For the past 20 years the NHSLA has collected membership contributions at a level influenced by a variety of factors including the risk profile of the type of work undertaken and whether any specialist care is provided. For example, a NHS body that deals with a large number of obstetric claims is required to pay a higher membership contribution than a body that does not. One of the main reasons for this is that obstetric clinical negligence claims remain, by some distance, the most expensive type of claim, especially when they involve a child with a significant brain injury resulting in the need for a high level of ongoing care.
When a claim is made against a CNST member, although the NHS member body remains the legal defendant, the NHSLA takes full responsibility for handling the claim and meeting the associated costs. When legal proceedings are commenced (and sometimes beforehand, if required) the NHSLA relies upon the services of a solicitor selected from a panel comprising 11 firms who collectively earned more than £120 million for dealing with the lion’s share of the 11,000 claims presented to the NHSLA in the last financial year.
The NHSLA estimates the total value of all current and anticipated claims could be as high as £56.44 billion, which gives an indication of the size of the problem faced by the NHS as it continues to harm patients and is required to pay claims damages and costs as a consequence.
For its 2015/16 annual report and accounts, the NHSLA has chosen Resolve and learn as a strap-line – we can only hope this mantra is put into practice, and sooner rather than later.
James Hawke. Solicitor and Head of clinical negligence.
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