Today’s Financial Times reports that Michael Wade, an insurance specialist tasked to investigate government insurance buying, has floated the idea that patients should see their right to sue the NHS limited or removed.
He takes pains to state that he’s not actively suggesting this course of action but that “it’s a question”.
According to Wade, the scale of malpractice litigation means that the cost of paying out is placing great strain on NHS funding, which is already under increasing long-term pressure.
Indeed the NHS Litigation Authority, which covers legal claims against the health service, has reportedly set aside £26.1bn to cover outstanding liabilities – equivalent to a quarter of the annual health budget.
The FT quotes Wade as saying: ““I’m not saying there shouldn’t be a duty of care, because of course there should be, but at what point do we say, ‘No, I’m sorry, the statutory law says you can’t sue’?”
Yet a more pertinent question might be: does that point actually exist? And if it does, should it?
After all, it is impossible to imagine a private company getting away with suggesting that, because it lost so many malpractice claims that it was in financial difficultly, it should be legally protected from them.
Nor is this just an abstract point of principle: at the bottom of every lost malpractice suit is victim who has been injured or otherwise wronged. They have no less right to restitution from the NHS than any private organisation.
Indeed patients have less power in the face of the NHS than consumers of private sector services, who can at least refuse future custom and patronise a competitor.
Wade’s comments highlight the challenges that will face any attempt, including those by Jeremy Hunt, to make the NHS more open, accountable and responsive to patients. Recent efforts to improve accountability coincide with an 18 per cent rise in malpractice suits in the year from March 2013.
As the crisis in health funding grows more acute it will become harder to keep momentum behind an accountability agenda if that agenda proves expensive.
Indeed it is not impossible to imagine Labour, beholden as they are to the public sector producer interest, taking steps to act on Wade’s question and narrow or close outright this vital avenue of accountability.
If the Conservatives are ever to deserve to call ourselves the party of the patient we must be very clear that, whatever the pressures on the NHS, the price of patient power will always be paid.