Healthcare Brief November 2016: market insights

A summary of key developments including the small claims track limit, fixed recoverable costs, safer maternity care, healthcare safety investigations, AvMA patient safety proposals, guidance on consent for treatment and the government’s cyber security strategy.

Small claims track limit

On 17 November 2016, the Ministry of Justice launched a consultation on reforming the claims process for whiplash claims. This includes a proposal to raise the small claims track limit for all personal injury claims, including clinical negligence claims, to £5,000, by reference to the value of the pain, suffering and loss of amenity element of the claim. The consultation paper recognises that a number of employers’ and public liability claims, as well as clinical negligence claims, are more complicated than whiplash claims. The consultation closes on 6 January 2017.

Contact: Deborah Newberry

Related item: Whiplash consultation: full steam ahead

Fixed recoverable costs

Following publication of minutes from the Civil Procedure Rule Committee’s meeting in July 2016, it has emerged that the Department of Health (DoH) is likely to limit its plans for fixed recoverable costs in clinical negligence cases to claims worth up to £25,000. In a related development, on 11 November 2016 it was announced that Lord Justice Jackson is to lead a new review of fixed recoverable costs generally, to be completed by 31 July 2017. It appears at this stage that clinical negligence claims will fall within the ambit of this review.

Contact: Martin Cox

Related item: Fixed recoverable costs: mixed news for defendants

Safer maternity care

On 17 October 2016, the Health Secretary, Jeremy Hunt announced a safer maternity care action plan, designed to improve the safety of maternity care in the NHS. Key measures include an £8 million fund for maternity safety training, a maternity safety innovation fund and consulting on a new rapid resolution and redress (RRR) scheme. The RRR scheme would investigate and learn lessons from incidents. In cases where harm was avoidable, it would offer access to financial support without the need for litigation. Full details of the consultation are awaited.

Contact: Christopher Malla

Healthcare safety investigations

The DoH’s consultation paper on providing a ‘safe space’ in healthcare safety investigations was published on 17 October 2016. The consultation seeks views on creating a balanced safe space to allow NHS staff to speak up about incidents without the fear of being punished. The intention is to create the right conditions to discuss errors and problems in care explicitly and thoughtfully. The concept of a safe space was laid out by the Public Administration Select Committee (PASC) in its 2015 report, ‘Investigating clinical incidents in the NHS’. The PASC’s view was informed, in part, by the model used by the Air Accident Investigation Branch. The consultation closes on 16 December 2016.

Contact: Rob Tobin

AvMA patient safety proposals

Action against Medical Accidents (AvMA) has presented draft proposals to ministers aimed at ensuring that there is always a review of litigated cases and a ‘patient safety letter’ provided to the claimant. The intention is for care providers to demonstrate that they have recognised and acted on lessons learned from litigation. The proposed functions of the patient safety letter are to set out breaches of duty or clinical failings, challenge the robustness of internal investigative procedures and provide greater public accountability through publication.

Contact: Ed Glasgow

ASHE data: 2016 first release

On 26 October 2016, the Office for National Statistics released the Annual Survey of Hours and Earnings (ASHE) 2016 provisional results. ASHE 6115, which is the standard occupational code used to calculate the annual increase of care and case management periodical payments, formed part of the released data. The 2016 ASHE 6115 provisional results show an increase across all percentiles, meaning claimants’ periodical payments will increase from last year. The highest annual increase of 8.6% was at the lower end of the earnings distribution, ASHE (10). Interestingly, the lowest annual increase of 2.8% was at the highest percentile, ASHE (90). ASHE (80), which is the default percentile used by the NHS Litigation Authority and many other compensators, has seen an increase of 3.7%.

View our table setting out the current and historic ASHE 6115 data

Contact: Christopher Malla

Consent for treatment: good practice guide

The Royal College of Surgeons (RCS) has published guidance on consent, setting out principles for working with patients through a process of supported decision making. This follows the ruling of the Supreme Court in Montgomery v Lanarkshire Health Board [2015], which represented a move towards a more patient-centred approach to issues of consent. The RCS has provided guidance on the discussion with the patient, the role of the consent form and how to document the consent process.

Contact: Amanda Mead

Cyber security strategy

On 1 November 2016, the government published its National Cyber Security Strategy 2016 to 2021, setting out its plans to make Britain secure and resilient in cyberspace. The strategy highlights that health and care systems pose unique challenges in the context of cyber security. It recognises that the National Data Guardian for Health and Care has set new data security standards for the health and social care systems in England, alongside a new data consent/opt-out model for patients. The strategy indicates that the government will work with health and social care organisations to implement these standards.

Contact: Jillian Raw

Related item: Healthcare: cyber attackers’ new prime target

Read other items in Healthcare Brief - November 2016