“A new industry of internal investigation” could be created by plans to strip trusts of their government indemnity cover if they break duty of candour rules, a lawyer has warned.
Health secretary Jeremy Hunt today said trusts that failed to be open and honest with patients and families when they suffered poor care could be forced to pay the costs of any litigation, as part of the government’s response to the Francis report.
Currently NHS trusts and foundation trusts pay a fee which sees them covered in a similar way to an insurance policy.
In 2011-12 the NHS Litigation Authority spent roughly £375m in legal bills and offered £1.1bn in compensation.
Duncan Astill, a partner at Mills and Reeve, said: “The concern is that the people who really pay are the patients as even more funds are diverted away from frontline care.
“Presumably this [duty of candour] sanction will be on top of a contractual sanction, for costs of episodes of care, and the criminal law sanction, which looks to be an unlimited fine. So potentially there could be three penalties for the same act.
“The duty of candour has the potential to drive a new industry of internal investigation where managers are asked to judge whether harm has or has not resulted from care. Where will the resources, training and expert advice come from to make that determination?”
Trusts’ litigation authority fees have been calculated on the basis of an organisation’s size adjusted by one of three levels of discount. These varied depending on how effectively the trust had assured the authority it was complying with safety and governance rules.
The litigation authority recently announced it intended to change its charges to more closely reflect the number of claims it handled for each trust.
NHS trusts can already leave the litigation authority scheme and several trusts considered doing so last year.