A report out last week by the House of Commons Public Accounts committee largely went unnoticed, but should concern all of us and not just colleagues doing their upmost to care for patients in the current health crisis. The report provides a further stark warning on the unsustainable cost of clinical negligence and its impact on public finances. 

Principal amongst them, is the provision of tax payer money for the £85 billion liabilities associated with clinical negligence which the report notes “represents significant risks to the UK finances.” The Treasury notes this amount is worth £3,600 for every household in England, compared to £700 per household 10 years ago.

The report goes on to say that “the government will be further exposed to liabilities arising from its response to covid-19 that will require strategic management.”

At the MDU, we help thousands of members each year with complaints and claims around their clinical care of patients. While many people have been understanding about the constraints and compromises forced on practitioners by the health crisis, others have continued to make complaints. MDU members have been in touch with us with over 3,000 complaints and adverse incidents from the start of the first lockdown in March 2020 to the end of last year. Such cases relate both to covid-19 treatment itself and the wider impact of the pandemic on the provision or availability of other care and treatment.

Two issues that feature prominently in our complaint files are alleged delays in diagnosing serious conditions such as cancers and stroke during remote consultations and delays in referrals for further investigations due to the backlog of non-covid related treatment.  

Many of these cases have the potential to become claims against the NHS in the years ahead. It’s worth remembering that claims are usually made three to five years after an incident and sometimes even decades later. 

The Supreme Court confirmed in 2018 that the standard of care is judged against the role undertaken and some legal commentators have already suggested it is unlikely “the Courts will relax these long established and rigid principles.” Whether that will indeed be the case remains to be seen.

It would be a mistake to assume that just because they are state indemnified and not financially responsible for claims relating to covid-19 treatment, that doctors are not concerned about the prospect of a claim. In a survey of our GP members, 63% said they were concerned about facing a complaint or claim related to the pandemic.

Doctors would still have to give evidence and face the distress and anxiety of having their clinical work criticised and decisions questioned when the public memory of the extraordinary circumstances they have been working under has faded.

The emotional turmoil of being subjected to lengthy clinical negligence proceedings long after the event can be a deeply traumatic experience. It is not uncommon for NHS staff subject to a claim to suffer from mental health problems as a result.

The government must act now to ensure the NHS, and all NHS healthcare professionals currently making enormous personal and professional sacrifices, are exempt from covid-19 related clinical negligence claims. As a matter of urgency, the government also needs to reform the law on clinical negligence to tackle the immense financial cost of compensation payments. This will ensure NHS finances are directed at patient care rather than the current system which results in millions of pounds leaving the NHS.

Christine Tomkins, chief executive of the Medical Defence Union.

Competing interests: none declared.