House of Lords
Written Answer
Asked by Lord McColl of Dulwich
To ask Her Majesty's Government how many cases of clinical negligence against the National Health Service funded by conditional fee agreements in each of the past five years were closed; in how many such cases damages were paid, whether by a settlement or award by a court; and, in cases where damages were paid, what were (a) the costs of defending the cases, (b) the legal costs paid to the claimants (including (1) base costs, and (2) success fees), and (c) the amounts paid in after the event insurance premiums. [HL2754] The Parliamentary Under-Secretary of State, Department of Health (Baroness Thornton): The information requested was provided by the NHS Litigation Authority (NHSLA) and is in the following table. With regard to claimants' costs, the NHSLA negotiates with claimant legal teams in order to bring costs down, and a final global figure is agreed on claimant costs on each claim. The NHSLA is therefore unable to provide a breakdown of this figure.
NHS: Litigation
Question
4 March 2010 : Column 1344W Mr. Bellingham: To ask the Secretary of State for Justice how much was spent on legal aid for medical negligence cases in each of the last 10 years. [320008]
Bridget Prentice: Amount spent net of receipts on civil representation together with the value of claims submitted under legal help, under the clinical negligence category of law, in each of the last 10 years is shown in the following table.
Civil representation includes work carried out under a legal aid certificate in matters that may or do proceed to court. Net expenditure is net of funding that is recovered, including from 'settled cases' where the other side (i.e. the non-legally aided client) agrees to pay costs.
Legal help includes initial legal advice. The figures are only available from January 2000, when contracting was introduced. The value quoted in the table is the value of claims that providers have submitted.
Legal Aid Scheme: Negligence
£ million
Civil representation
Legal help
Expenditure
Value of claims submitted
House of Commons
Written answer
21 Jan 2010 : Column 446W
Mr. Baron: To ask the Secretary of State for Health how many cases of clinical negligence which were funded by conditional fee agreements were closed in each of the last five years; in how many such cases damages were paid (a) by agreement to settle and (b) by award; what the total cost was of defending each such case where damages were paid; how much was paid to claimants in legal costs in (i) total, (ii) base costs and (iii) success fees; and in such cases where damages were paid, how much was paid in after-the-event insurance premiums. [312528]
Ann Keen: The information requested is in the following table and was provided by the NHS Litigation Authority (NHSLA). The NHSLA is only able to provide an overall total of claimant costs because a global figure is recorded in their database. To provide a detailed breakdown of claimant costs, including After the Event insurance, would be at disproportionate cost.
|
Number of claims where the claimant funding was conditional fee arrangement (CFA) closed April 2004 to March 2009
| |||||
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Year of closure
|
Number of CFA claims closed
|
Number of claims
|
Damages paid (£)
|
Defence costs paid (£)
|
Claimant costs paid (£)
|
|
2004-05
|
|||||
|
2005-06
|
|||||
|
2006-07
|
|||||
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2007-08
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|||||
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2008-09
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|||||
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Total
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|||||
House of Commons
27 October 2009
Written Answer: Column 265W
Mr. Lansley: To ask the Secretary of State for Health pursuant to the answer of 13 July 2009, Official Report, column 176W, on NHS: negligence, how much was spent in total on (a) claimant costs, (b) defence costs and (c) damages for (i) the closed claims in which claimant costs exceeded damages and (ii) all closed claims in each year. [294352]
Ann Keen: Following an internal review by the NHS Litigation Authority, an error was detected in Table 2 of the answer of 12 October 2009, Official Report, columns 736-37W, on NHS: Negligence. The following tables correct that error and provide the additional data requested.
27 Oct 2009 : Column 266W
|
Table 1: Payments made on clinical negligence claims where claimant costs were greater than the damages paid on claims closed 2004-05 to 2008-09 as at 30 August 2009 | |||
|
£ | |||
|
Year of closure |
Damages paid |
Defence costs paid |
Claimant c osts paid |
|
2004-05 |
9,824,545 |
8,591,362 |
17,105,723 |
|
2005-06 |
10,957,214 |
8,475,960 |
19,786,927 |
|
2006-07 |
11,857,076 |
8,345,493 |
20,668,200 |
|
2007-08 |
18,385,285 |
11,371,170 |
31,878,502 |
|
2008-09 |
16,949,494 |
9,786,706 |
31,553,118 |
|
Total |
67,973,614 |
46,570,691 |
120,992,47 |
|
Table 2: Payments made on all other clinical negligence claims closed 2004-05 to 2008-09 as at 30 August 2009 | |||
|
£ | |||
|
Year of closure |
Damages paid |
Defence costs paid |
Claimant costs paid |
|
2004-05 |
358,508,722 |
43,504,736 |
58,017,881 |
|
2005-06 |
353,351,141 |
39,468,081 |
60,943,948 |
|
2006-07 |
275,848,011 |
33,366,925 |
53,294,121 |
|
2007-08 |
332,052,942 |
40,111,830 |
67,590,234 |
|
2008-09 |
289,238,325 |
36,480,285 |
69,616,778 |
|
Total |
1,608,999,141 |
192,931,858 |
309,462,963 |
27 Oct 2009 : Column 266W—continued
|
Table 3: Payments made on all clinical negligence claims closed 2004-05 to 2008-09 as at 30 August 2009 | |||
|
£ | |||
|
Year of closure |
Damages paid |
Defence costs paid |
Claimant costs paid |
|
2004-05 |
368,333,267 |
52,096,098 |
75,123,605 |
|
2005-06 |
364,308,355 |
47,944,041 |
80,730,875 |
|
2006-07 |
287,705,087 |
41,712,419 |
73,962,321 |
|
2007-08 |
350,438,228 |
51,483,000 |
99,468,737 |
|
2008-09 |
306,187,819 |
46,266,991 |
101,169,896 |
|
Total |
1,676,972,755 |
239,502,548 |
430,455,434 |
Mr. Lansley: To ask the Secretary of State for Health how many unsuccessful clinical negligence claims were brought against the NHS in each year since 1997-98 for which figures are available; and how much unsuccessful claimants spent in (a) defence costs and (b) claimant costs in each year. [294360]
Ann Keen: The NHS Litigation Authority (NHSLA) only records data relating to members of its; schemes, which include all primary care trusts, national health service trusts and NHS foundation trusts.
For unsuccessful claims, not all defence costs are recovered from claimants. This may be because the claimant was funded by the Legal Services Commission or if the claimant does not have the resource to pay costs. The NHSLA does not specifically record defence costs recovered from claimants and to obtain this information would be at disproportionate cost. However, as an alternative, the NHSLA have provided information on defence costs of unsuccessful claims in the following table.
Defence Costs paid on all clinical negligence claims closed 2004-05 to 2008-09 with nil damages as at 30 August 2009
|
Closure |
Number of claims |
Defence costs paid (£) |
|
2004-05 |
4,033 |
13,166,895 |
|
2005-06 |
3,040 |
9,320,411 |
|
2006-07 |
2,910 |
9,183,562 |
|
2007-08 |
2,650 |
10,748,887 |
|
2008-09 |
2,338 |
8,112,917 |
|
Total: |
14,971 |
50,532,671 |
The NHSLA does not record data relating to claimant costs in unsuccessful cases as it does not make payment on these costs and the claimant is not obliged to disclose the information to the defendant.
House of Commons
20 May 2009 column 1447W
Written Answer
Negligence: NHS
Mr. Grieve: To ask the Secretary of State for Justice (1) in how many legally-aided clinical negligence claims cases the Legal Services Commission was unable to reclaim costs from the NHS Litigation Authority in the last 12 months; [276032]
(2) how many legally-aided clinical negligence claims in 2008 related to incidents in each of the previous 10 years; [276033]
(3) in how many clinical negligence claims the claimant received legal aid in the last year for which information is available. [276034]
Mr. Straw: The Legal Services Commission’s case management system, does not record defence organisations. A manual examination of all clinical negligence case files closed in the last 12 months might not identify the NHS Litigation Authority in every instance, and such an exercise could be undertaken only at disproportionate cost.
In 2007-08, 1,926 certificates were issued to take proceedings in clinical negligence cases and 65 per cent. resulted in a substantive benefit to the client with costs recovered. The remaining 2,714 cases were funded up to an investigation stage, without proceedings being issued.
The Legal Services Commission’s case management system does not record the date(s) on which an incident took place in clinical negligence cases. A manual examination of all case files closed in 2008 might not reveal the date(s) on which the incident took place in every instance, and such an examination could be undertaken only at disproportionate cost.
3,883 claims for clinical negligence received legal aid funding in the financial year 2008-09.
House of Commons
Written Answers
11 March 2009 Column 513W
Negligence
Mr. Baron: To ask the Secretary of State for Health how many clinical negligence cases were open on the NHS Litigation Authority database at the most recent date for which figures are available; and how many of them are being funded by (a) legal aid, (b) conditional fee agreements, (c) before the event insurance, (d) private means and (e) other means. [262745]
Ann Keen: The information requested was obtained from the NHS Litigation Authority (NHSLA) and is provided in the following table. Claimants are not required to provide details of their funding arrangements, but the NHSLA records this where it is known.
|
Number of clinical negligence claims open as at 28 February 2009 | |
|
Claimant funding |
Total |
| Before the Event Insurance | 847 |
| Conditional Fee Arrangement | 3,743 |
| Legal Services Commission | 4,697 |
| Self-funded | 798 |
| Unknown | 1,453 |
| Grand total | 11,538 |
Mr. Baron: To ask the Secretary of State for Health how many clinical negligence cases were brought in the last year for which figures are available; and how many of them were funded by (a) legal aid, (b) conditional fee agreements, (c) before the event insurance, (d) private means and (e) other means. [262746]
11 March 2009 : Column 514W
Ann Keen: The information requested was obtained from the NHS Litigation Authority (NHSLA) and is provided in the following table. Claimants are not required to provide details of their funding arrangements, but the NHSLA records this where it is known.
|
Number of clinical negligence claims received in 2007-08 as at 28 February 2009 | |
|
Claimant funding |
Total |
| Before the Event Insurance | 418 |
| Conditional Fee Arrangement | 1,896 |
| Legal Services Commission | 1,209 |
| Self-funded | 679 |
| Unknown | 1,014 |
| Grand total | 5,216 |
Mr. Baron: To ask the Secretary of State for Health how many clinical negligence cases were closed by the NHS Litigation Authority in the last year for which figures are available; how many of them were funded by (a) legal aid, (b) conditional fee agreements, (c) before the event insurance, (d) private means and (e) other means; and how many cases in each category of funding resulted in an award of damages or a settlement involving an agreement to pay damages. [262747]
Ann Keen: The information requested was obtained from the NHS Litigation Authority (NHSLA) and is provided in the following table. Claimants are not required to provide details of their funding arrangements, but the NHSLA records this where it is known.
|
Number of clinical negligence claims closed in 2007-08 as at 28 February 2009 | |||
|
Claimant funding |
Damages awarded |
No damages |
Grand total |
| Before the Event Insurance | 287 | 91 | 378 |
| Conditional Fee Arrangement | 1,132 | 438 | 1,570 |
| Legal Services Commission | 1,133 | 803 | 1,936 |
| Self-funded | 425 | 286 | 711 |
| Unknown | 495 | 1,089 | 1,584 |
| Grand total | 3,472 | 2,707 | 6,179 |
Mike Penning: To ask the Secretary of State for Health how many litigation cases were brought against his Department for clinical negligence in the latest period for which figures are available; and how much was paid out as a result. [226854]
Ann Keen: The Department has not received any litigation cases for clinical negligence. Claims of clinical negligence in the national health service are made against the NHS body providing the care.
Of the 4,593 cases formally claimed in 2007-08, as of 30 September 2008, 2,262 have been settled, with £18,217,815 being paid out in damages, £2,272,334 in defence legal costs and £7,878,866 in claimant legal costs. The NHS Litigation Authority, which handles clinical negligence cases on behalf of member organisations, provided this information. The data do not include claims made against self-employed contractors in primary care.Mr. Baron: To ask the Secretary of State for Health if he will publish details of the accord between the NHS Litigation Authority and FirstAssist in relation to the level of insurance premiums recovered in respect of after the event insurance provided in connection with clinical negligence claims funded by conditional fee agreements. [222625]
Ann Keen: A copy of the Accord between the NHS Litigation Authority and FirstAssist has been placed in the House Library.
The Accord is a non-binding statement of intent which seeks to give effect to the judgment of Senior Costs Judge Hurst in the RSA Pursuit Test Cases(1) and to provide an informal means for resolving disputes between the NHSLA and First Assist. The NHSLA specifically reserves the right to challenge premiums where it believes the premium is disproportionate to the size of the damages obtained. The Accord was entered into with the intention of providing an element of certainty in this area of litigation and with the aim of avoiding unnecessary costs associated with satellite litigation.
(1) Reference (2005) EWHC 90003 (Costs) 27 May 2005, BAILII
House of Commons
Written Answer
13 May 2008 : Column 1550W
Mr. Baron: To ask the Secretary of State for Health what the policy of the NHS Litigation Authority is in respect of defending clinical negligence claims funded by (a) conditional fee agreements and (b) legal aid. [205368]
Ann Keen: The NHS Litigation Authority (NHSLA) is responsible for handling clinical negligence claims made against members of its schemes. It does not have
13 May 2008 : Column 1551W
a policy in respect of defending claims based upon the funding arrangements of the claim. Case managers at the NHSLA make decisions on the defence of each claim based upon the available facts and expert legal and medical opinion. Claimants are not required to report their funding arrangements unless the claim proceeds to court.
House of Commons
Written Answer
6 May 2008 : Column 772W
Mark Simmonds: To ask the Secretary of State for Health what the cost to the public purse was of (a) legal costs and (b) damages awarded in respect of clinical negligence cases involving the NHS in each of the last three years. [200434]
Ann Keen: The information requested is in the following table. The information was obtained from the NHS Litigation Authority's published accounts.
|
£ | |||
|
Year claim closed |
Damages |
Defence legal costs |
Claimant legal costs |
| 2005-06 | 412,245,050 | 54,894,083 | 91,252,864 |
| 2006-07 | 332,786,934 | 49,808,394 | 83,830,905 |
| 2007-08 | 384,841,737 | 56,848,517 | 108,921,201 |
|
Notes: | |||
Mark Simmonds: To ask the Secretary of State for Health how many clinical negligence cases the NHS (a) won and (b) lost in each of the last three financial years. [200435]
Ann Keen: The information requested is in the following table and was obtained from the NHS Litigation Authority (NHSLA).
|
Number of claims won and lost by the NHSLA by year claims were closed | ||
|
Year claim closed |
Number of claims—nil damages ‘won’ |
Number of claims with damages ‘lost’ |
| 2005-06 | 3,541 | 3,564 |
| 2006-07 | 3,330 | 3,209 |
| 2007-08 | 3,054 | 3,630 |
|
Notes: | ||
Mark Simmonds: To ask the Secretary of State for Health how many cases of clinical negligence litigation involving the NHS there were in each of the last three financial years; and how many of those cases were financed by legal aid. [200436]
Ann Keen: The NHS Litigation Authority (NHSLA) provided the data requested in the following table. The data only cover claims relating to national health service trusts, NHS foundation trusts, and primary care trusts.
|
Number of clinical negligence claims received 1 April 2005 to 31 March 2008 and their claimant funding as at 31 March 2008 | ||||||
|
NHSLA notification year |
Before the event insurance |
Conditional fee arrangement |
Legal services commission |
Self funded |
Not identified |
Total |
| 2005-06 | 275 | 1,346 | 1,537 | 670 | 1,872 | 5,700 |
| 2006-07 | 329 | 1,503 | 1,313 | 597 | 1,678 | 5,420 |
| 2007-08 | 319 | 1,501 | 965 | 489 | 2,196 | 5,470 |
| Total | 923 | 4,350 | 3,815 | 1,756 | 5,746 | 16,590 |
|
Note: | ||||||
House of Commons
26 Mar 2008 : Column 210W—continued
Mr. Baron: To ask the Secretary of State for Health what the 100 largest clinical negligence payments were for compensation claims against his Department by award or settlement in the last five years; and what the nature of the complaint was in each case. [196328]
Mr. Bradshaw [ holding answer 25 March 2008]: The information requested has been placed in the Library, the table shows the top 100 damages payments last five years. The NHS Litigation Authority supplied the information.
The size of award for cases is the total amount paid on closed claims, or for the sum of the outstanding damages reserve and the damages already paid for open claims. Open claims are claims where settlement has been agreed but final payments have not yet been made.
House of Commons
21 February 2008 column 986W
Negligence: Health Services
Mr. Baron: To ask the Secretary of State for Justice how many legally-aided clinical negligence cases were closed in 2007; and how many of these cases resulted in an award of damages or a settlement involving an agreement to pay damages or compensation. [187920]
Maria Eagle: Figures covering the whole of 2007 will not be available until after the end of the current financial year. However, 5,584 legally aided clinical negligence cases were closed in 2006-07. In 160 of these cases, the solicitors reported that the outcome was unknown, as the client had ceased to give instructions or was proceeding under other funding or as a litigant in person. Of the remaining cases, 300 resulted in an award of damages, and 1,708 in a settlement involving an agreement to pay damages or compensation.
House of Commons
16 January 2008
Column 1365W
Mr. Baron: To ask the Secretary of State for Health how many clinical negligence cases were open on the NHS Litigation Authority database at the most recent date for which information is available; and how many of those cases are being funded by (a) legal aid, (b) conditional fee agreements, (c) before the event insurance, (d) private means and (e) other means. [178411]
Ann Keen [holding answer 14 January 2008]: The information requested is shown in the following table. The NHS Litigation Authority supplied the data.
Number of clinical negligence cases open on the NHS Litigation Authority database and their funding arrangements where known as at 31 December 2007.
|
|
Number of reported incidents( 1) open at 31 December 2007 |
Number of actual claims open at 31 December 2007 |
Total number of open cases at 31 December 2007 |
| BTE Insurance | 17 | 598 | 615 |
| Conditional Fee Arrangement | 88 | 2,703 | 2,791 |
| Legal Services Commission | 355 | 4,492 | 4,847 |
| Self Funded | 30 | 647 | 677 |
| Unknown | 779 | 2,203 | 2,982 |
| Total | 1,269 | 10,643 | 11,912 |
|
(1) Reported incidents are incidents that have been reported but which have not yet been made into an actual claim. | |||
House of Commons
16 January 2008
Column 1365W –continued
Mr. Baron: To ask the Secretary of State for Health how many clinical negligence cases were brought in the last year for which information is available; and how many of those cases were funded by (a) legal aid, (b)
16 Jan 2008 : Column 1366W
conditional fee agreements, (c) before the event insurance, (d) private means and (e) other means. [178412]
Ann Keen [holding answer 14 January 2008]: The information requested is in the following table. The NHS Litigation Authority supplied the data.
|
Number of clinical negligence cases received by the NHS Litigation Authority in 2006-07 and their funding arrangements where known as at 31 December 2007 | |
|
Funded by |
Number of clinical negligence cases received in 2006-07 |
| BTE Insurance | 310 |
| Conditional Fee Arrangement | 1,456 |
| Legal Services Commission | 1,251 |
| Self Funded | 591 |
| Unknown | 1,812 |
| Total | 5,420 |
Mr. Baron: To ask the Secretary of State for Health how many clinical negligence cases were closed by the NHS Litigation Authority in the last year for which figures are available; how many of those cases were funded by (a) legal aid, (b) conditional fee agreements and (c) other means; and how many cases in each category of funding resulted in an award of damages or a settlement involving an agreement to pay damages. [167022]
Ann Keen: The information requested is in the following table. The information was supplied by the NHS Litigation Authority.
|
Number of clinical negligence claims closed during 2006-07 | ||
|
Funded by |
Number of claims closed 2006-07 |
Number of claims closed 2006-07 with damages payments |
| Conditional fee arrangement | 1,200 | 830 |
| Legal services commission | 1,883 | 1,001 |
| Other funding | 1,078 | 667 |
| Unknown funding | 2,181 | 624 |
| Total | 6,342 | 3,122 |
House of Commons
5 June 2006
NHS Redress Bill, Second Reading
Column 39
[Mr Andrew Lansley]
Of course, legal aid provides the oxygen for medical litigation, because most cases are publicly funded…
5 Jun 2006 : Column 40
I find it astonishing that the Secretary of State did not talk about legal aid, because the problems of legal aid go to the heart of the difficulties that we are experiencing with the clinical negligence system. The Government’s apparent desire to avoid that fact is evidence that they have not thought through the policy implications of dealing with the legal aid problems.
Let us run through some of those problems. Legal aid does not ensure access to justice for deserving cases, as most people are not eligible. Instead, it provides access to lawyers for an eligible minority. Legal aid lacks independence. Funding is granted on the advice of the applicant’s lawyer, so there is a clear conflict of interest that may encourage over-optimistic advice, to put it kindly, or speculative litigation, putting it less kindly. Legal aid lacks fairness. Successful defendants cannot recover legal costs. Legal aid puts the claimant in a no-lose position and the health service defendant in a no-win position. It may be cheaper to settle a claim regardless of merit, to avoid irrecoverable legal costs—a practice known as legal aid blackmail.
The Secretary of State referred to the legal costs that the NHS has incurred, and of course the structure of legal aid is one of the reasons why the legal costs that the NHS has had to meet have been so great. Legal aid lacks accountability. Funding decisions involving public money are privileged and confidential, and are not subject to public scrutiny. As a Member of Parliament, I have sought to question some of the decisions made by the Legal Services Commission about the people to whom they grant legal aid. Frankly, that is an impenetrable question. The fact that it has met and made a decision is regarded by the LSC as justification enough.
Most clinical negligence cases are legally aided, but the great majority of households do not qualify for legal aid. Is it the case that clinical negligence harms only people eligible for legal aid? Of course not. It is not a matter of cases not being brought because they
5 Jun 2006 : Column 41
lack merit; they are not brought because there is no legal aid available. The record of legally aided claims involving health care is dismal, as I said. In some instances, that has promoted unsubstantiated health claims and scares based on junk science, threatening the health of the nation’s children. Too often, lawyers are the only beneficiaries of publicly funded legal action. Scarce resources are diverted from patient care to lawyers’ fees, all in the name of justice and all paid for by the taxpayer.
The solution to the problem of clinical negligence litigation lies in the realm of funding. Legal aid has brought relief to many people, but it is a popular misconception to equate legal aid with access to justice. Access to justice is not best delivered by the legal aid system. There is a better way to do that; before the election, we said that we needed wider proposals to reform clinical negligence—I am sure we will return to that. The reforms in the Bill are consistent with a wider reform, but no one should believe that they are sufficient in themselves. However, it is best to confine ourselves to the scope of the Bill, rather than try to debate the wider question of the way in which legal aid can be reformed…