If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture.
This is the first of a few posts on the recent Commons
Committee report – The Safety of Maternity Services in England –
https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm
The report includes a section headed – Rethinking the
current approach to clinical negligence.
I have to confess to feeling an instinctive sense of unease when politicians talk about ‘rethinking’ or ‘reform’. It rarely ends well.
The report starts out by referring to cost – “Staggeringly,
the £1bn paid out in maternity compensation in 2018/19 was nearly twice the
wage bill for all of England’s obstetricians and gynaecologists combined”. This
is indeed an alarming figure. But we cannot lose sight of the incidents which are
leading to these payments. They will not go away just because the system is
changed. The report subtly shifts responsibility to claimant lawyers and to
victims themselves – “Even more concerning is how much of this rising bill goes on
lawyers’ fees” In fairness the report acknowledges the need to learn
from mistakes, but the body of the report is not encouraging. In particular we
meet a familiar villain – ‘blame culture’.
The report
talks of ending this culture. It discusses the problems of ‘compensation based
on finding fault.’ This is based on the false assumption that damages claims
that arise from negligence in a clinical setting are somehow different from those arising in other contexts. The law
of Tort in this country has developed over many years. The law of Negligence
has developed within this. As long ago as the 1930s there was a classic legal
case, familiar to all first year law students involving a snail in a bottle of
ginger beer. Lord Atkin gave us a quote that has underpinned negligence claims –
‘The rule that you are to love your neighbour becomes in law
you must not injure your neighbour; and the lawyer's question " Who is my
neighbour ?" receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to
injure your neighbour’*
In other words, if you owe me a duty to take care, if you
fail in that duty and I am injured as a result, you (or your insurer) must pay
me compensation. This has become such an accepted part of our world that we
rarely think about it. If your
accountant is negligent and you lose money you expect to be compensated. If your
lawyer is negligent and you lose money you expect to be compensated. If your taxi
driver is negligent and you are injured, you expect to be compensated. If a
surgeon is negligent and your child is damaged for life, you are part of a blame
culture. This is the danger of focussing on one are of life and treating it differently
from others, for political reasons.
The report mentions a ‘new’ approach based on what is avoidable
and refers to the experience in Sweden.
This risks setting aside decades of jurisprudence for the sake
of political acceptability. The current system of clinical negligence,
developed by judges over many decades has given us a strong foundation that has
been capable of adapting to change. Two examples come to mind –
1. Informed consent. A medical practitioner
can only interfere with my body if I consent. In order to give that consent, I must
be properly informed. I must know the risks and benefits. For many years, the medical
profession decided what information I should be given. In a case called Siddaway
v Board of Governors of Bethlem Hospital **, Lord Diplock said – “To decide what risks the existence of which a patient should
be voluntarily warned and the terms in which such warning, if any, should be
given, having regard to the effect that the warning may have, is as much an
exercise of professional skill and judgment as any other part of the doctor’s
comprehensive duty of care to the individual patient, and expert medical
evidence on this matter should be treated in just the same way.” By 2015
society had changed. In Montgomery v Lanarkshire Health Board*** the Supreme
Court confirmed this in a strongly worded judgment. This was a case about risks
and benefits of caesarean section delivery in the case of a mum with diabetes
who had a large baby. There was a risk of shoulder dystocia which can be
catastrophic. The treating doctor explained why she had not discussed the
matter - “since I felt the
risk of her baby having a significant enough shoulder dystocia to cause even a
nerve palsy or severe hypoxic damage to the baby was low I didn’t raise it with
her, and had I raised it with her then yes, she would have no doubt requested a
caesarean section, as would any diabetic today.” The lower courts were bound to
follow the Siddaway principle. The Supreme Court took the opportunity to bring
the law into the 21st Century – “A patient is entitled to take into account
her own values, her own assessment of the comparative merits of giving birth in
the “natural” and traditional way and of giving birth by caesarean section,
whatever medical opinion may say, alongside the medical evaluation of the risks
to herself and her baby. Gone are the days when it was thought that, on
becoming pregnant, a woman lost, not only her capacity, but also her right to
act as a genuinely autonomous human being” – Lady Hale. This is an example of
how our common law has been able to adapt in order to reflect modern thinking.
2. Damages. In 2002 Patricia Briody brought
an action against St Helens and Knowsley Health Authority**** having lost her
fertility due to their negligence. She wanted to recover the cost of a commercial
surrogacy arrangement in the USA and to use donor eggs. That part of her claim
failed. A commercial surrogacy arrangement was illegal in this country. In 2021
the Supreme Court allowed similar arrangements. Society had moved on. The
arrangement was perfectly legal in California. Lady Hale observed that the
persuasiveness of Briody had been mitigated by - ‘subsequent developments in the law and social attitudes
relating to surrogacy’*****
These are examples of the way in which
our law of negligence has grown and developed in a way that properly compensates
victims and has reflected changes in and value of society. It is a backwards step, to take
clinical negligence away from that whole body of law and introduce a entirely
new concept of avoidability. That would also leave us in the strange situation where
some jurisprudence applicable to clinical cases could apply if you were suing your
financial adviser but not if you were suing your doctor.
It is healthy to learn from the
experience of other countries. But they have their own history from which their
approach has developed. There is room
for improvement. But we have a long and detailed history that cannot be cast aside
just by calling it a blame culture.
I will discuss this in later posts.
The report also includes worrying comments on how damages for care and for loss
of earnings are calculated. Watch this space.
*Donohue v Stevenson [1932] AC 562
** Siddaway v
Board of Governors of Bethlem Hospital [1985] AC 871
*** Montgomery v Lanarkshire
Health Board [2015] UKSC 11
**** Briody v St
Helens and Knowsley Health Authority [2001]
EWCA Civ 1010
**** XX v Whittington [2020 UKSC
14
No comments:
Post a Comment