Drive to cut litigation costs may be extended 'throughout the NHS'

He said plans to offer independent investigations and earlier compensation to parents of children with brain injuries caused by NHS negligence could act as a template for the rest of the health service, if it leads to reduced incidents and costs.

The health secretary also gave a commitment that patients and relatives would remain at the heart of the new “safe space” process being designed to allow clinicians to be honest about mistakes during investigations into poor care.

In an extensive interview with HSJ, Mr Hunt said he was “absolutely not” aiming to cut across duty of candour legislation and families would receive information and retain their right to take legal action.

Earlier this week Mr Hunt announced a new “rapid resolution and redress” scheme for parents of children left brain damaged at birth. This would include an investigation and faster access to compensation.

Mr Hunt said there were 96 multimillion pound awards for brain injured children in 2015-16 – the largest part of the £1.4bn litigation bill for the NHS.

“I want to demonstrate to the Treasury that if we can create a more open culture when things go wrong and by giving families earlier access to compensation we can avoid litigation, but most importantly, we can reduce the number of brain injured children.”

He added: “This is a pilot. It is a very specific area but if we can move the needle on this it could be a really exciting template. I want to prove that having an open and transparent approach in one area can have a big difference.

“What would be next [would be] the whole of maternity and eventually, if this approach works and we can demonstrate we really are bringing down the number of adverse incidents that we have, then it is something we can adopt throughout the NHS.”

The Department of Health launched a consultation this week on plans to pass new laws creating a safe space for clinicians and staff cooperating with an investigation, which would mean evidence they give about mistakes could not be used against them.

The safe space protection was originally intended to cover investigations by the new Healthcare Safety Investigation Branch, but the DH consultation proposes extending this to all investigations by or on behalf of NHS trusts. This would prevent the disclosure of any material obtained during an investigation, unless ordered by the High Court. Exemptions would include risks to patient safety or discovery of criminal acts.

Mr Hunt said the safe space had been modelled on what happens in the airline industry after an accident, but it would need to be different for the NHS.

He said there was an “understandable feeling from patients who have suffered a tragedy that they want justice and therefore they don’t want anything that feels like it could be immunity when someone has done something wrong. I completely understand that worry.

“So the first thing I have been absolutely clear about is that the safe space must involve families, so this is not about concealing the information from families.

“What we are looking at is: is there a way that we can share information with families to make it meaningful for clinicians, so that once this information has been shared it can’t be used except to improve learning in the NHS. As a family if you want to take legal action afterwards, your rights will be completely protected to do that, but you will have to re-gather that information to use it.”

Mr Hunt said he believed that once the NHS had been open with families and shared information through the safe space the desire for litigation from families would be reduced.

He said: “Rather than cut across the duty of candour it will be part of the duty. But if it is going to be meaningful for clinicians they need to know that when they are honest about errors it is going to be shared with families, but it won’t be used against them unless it’s gross misconduct or against the law.”