Healthcare Brief November 2017: market insights

Date published





A summary of key developments including an update on the discount rate review, MoJ progress and the post-implementation review of LASPO; a thematic review of cerebral palsy claims, a new blueprint for fixed costs, the launch of the online court pilot, judicial intervention in mental health treatment and new data protection legislation.

Discount rate review: pre-legislative scrutiny

On 1 November 2017, the Justice Committee took oral evidence as part of its pre-legislative scrutiny into the draft discount rate legislation that was published on 7 September 2017. Ministry of Justice (MoJ) spokesman, Lord Keen, said the legislation would be in force early next year and that the MoJ would set the new discount rate in motion soon after. The MoJ has accepted the current discount rate of -0.75% and supporting methodology should be reformed. In its September response, the MoJ agreed the rate should be based on expected investment returns from a low-risk diversified portfolio, rather than solely very-low risk index-linked government stocks. The Committee will report by the end of November.

Related item: Repairing the discount rate for fairer compensation

Contact: Mark Burton

LASPO review: Ministry of Justice progress

On 25 October 2017, the Lord Chancellor David Lidington gave evidence to the Justice Select Committee on the work of the MoJ. Speaking about civil justice and court reform, Lidington said that he was in “constant conversations” about opportunities for a legislative slot for the Civil Liability Bill. However, he made clear that domestic bills have to be fitted in around the needs of the European legislative programme. The Justice Secretary subsequently confirmed the government will start its post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 and will include the civil litigation funding and costs reforms. The review is expected to conclude before the start of the summer recess 2018.

Related item: The politics: a weakened Prime Minister, a minority government

Contact: Deborah Newberry

Cerebral palsy claims: thematic review

In September 2017, NHS Resolution published a detailed analysis of claims for cerebral palsy that occurred between 2012 and 2016. The purpose of the review is to identify the clinical and non-clinical care issues that arose in those claims, disseminate the shared learning and use it to make recommendations for change and improvement. Key findings raise the importance of staff training and serious incident investigations at a local level. The review takes into account the work currently ongoing within the wider maternity system, including the development of local maternity systems.

Related item: Cerebral palsy claims: NHS Resolution publishes thematic review

Contact: Christian Lowden

Jackson report: a new blue print for fixed costs

Lord Justice Jackson’s final report on extending the fixed recoverable costs (FRC) regime was published on 31 July 2017. Jackson LJ has set out a blue print that will bring, if implemented, a grid of FRC for all fast track cases and a new ‘intermediate’ track for certain claims up to £100,000. Jackson recommends that the Department of Health and Civil Justice Council set up a working party to develop a bespoke process for handling clinical negligence claims up to £25,000. That bespoke process should have a grid of FRC attached. A government-led consultation on the proposals is now expected, against a target date which is said to be October 2018.

Related item: Jackson report: a new court track and a new world of fixed fees for claims up to £100,000

Contact: Christopher Malla

“County court online”: pilot launched

The 91st update to the Civil Procedure Rules has introduced provisions for a pilot allowing for the electronic submissions of claims for money claims in the county court, where the claimant is legally represented. On completion of the claim form online, the court claims centre will issue and digitally seal the claim which will be returned electronically the claimant’s lawyer for downloading and service on the defendant. The pilot will run from 12 September 2017 to 30 November 2019 and will proceed on an invitation-only basis.

Related item: The £1 billion plan: the Civil Court of the future

Contact: David Froome

Compulsory mental health treatment: involving judges

On 26 August 2017, Judge Hinchliffe spoke at the University of Hong Kong. As the senior judge in day-to-day charge of the mental health tribunal jurisdiction in England, Hinchliffe J spoke about his sense of a desire around the world to look afresh at how we can better understand the needs of people with a mental disorder or diminished mental capacity. Referring to the development of the current system of tribunals dealing with the legal ramifications of such illness, he stressed the importance of respecting a person’s right to self-determination, even if their decisions seem unwise.

Contact: Rob Tobin

New age data protection: mirroring international standards

The Data Protection Bill was introduced to Parliament on 13 September 2017. The Government will use this Bill to mirror a number of existing international standards - specifically the EU General Data Protection Regulation (GDPR) - and enshrine their requirements into UK Statute. The new law will replace the UK’s existing Data Protection Act. It is expected that the Bill will have finished its remaining stages in the House of Lords by late-November before entering the House of Commons for scrutiny in early December. The Government will be looking for the Bill to come into UK law well before the GDPR implementation date of 25 May 2018.

Related item: Data protection: UK Data Protection Bill starts process through House of Lords

Contact: Ed Glasgow

Read other items in the Healthcare Brief - November 2017