The 4th October 2024 marked the latest milestone for an issue that has been rumbling within government for rapidly approaching three years – proposals to implement a system of Fixed Recoverable Costs (FRC) in clinical negligence cases.
FRC is a system whereby there would be a set amount of legal costs that can be claimed back from the losing party by the winning party in litigation. It is an established practice in most personal injury claims. However, such a system is not currently in place in relation to clinical negligence claims.
In January 2022, the Department of Health and Social Care launched a consultation on whether to implement such a scheme for claims up to £25,000. Nearly two years later, in October 2023, the last government issued its response, confirming that the system should be implemented from April 2024.
This did not happen. Instead, the Civil Procedure Rule Committee (CPRC) determined in March 2024 that the implementation of the proposed FRC system would need to be delayed until October due to ‘outstanding issues’.
Since March, a lot has changed. There is a new government, a new Health Secretary and more money for the NHS. However, there is no new FRC system in place, despite the second self-imposed deadline having passed.
In fact, the issue was not even discussed by the CPRC during their meeting on 4th October, despite this being the month of the new deadline. Progress has clearly stalled. Or, more concerningly, is the appetite for such a reform waning?
In the weeks since, it was initially suggested that the implementation had been pushed back to April 2025. Others, however, have now suggested that achieving a FRC scheme by this date would be impossible, particularly given the CPRC is currently not actively considering the issue.
Delay on top of delay. Feeding an increasingly unsustainable clinical negligence bill for the taxpayer. Every month without it in place is a burden on the NHS. The last government stated that its implementation would see a saving of approximately £454 million over a ten-year period.
When we are talking about spending the NHS budget more efficiently, how can government ignore this issue? It must be a priority.
In our written evidence submission to the Public Accounts Committee inquiry into NHS Financial Sustainability, the MDU also highlighted the cost incurred in individual member cases due to the lack of an FRC. In one such case, the claimant received £1,000 while legal costs were £30,000. In another case, the claimant received £23,000 whilst their legal costs were £140,000.
A FRC scheme would lower costs, allowing the saved money to be reinvested into frontline services. It would bring clinical negligence claims in line with the system used in other claims. And it would help to stem a spiralling and expensive clinical negligence regime, which now stands at £2.9 billion a year and rising according to NHS Resolution.
Indeed, the MDU wants that the government should go further and commit to extend an FRC regime to claims valued up to £250,000, as outlined in our recent Agenda for Change policy paper.
Clarity is needed. Action is needed. That’s what the MDU is campaigning for.
For more information, you can read our recent Agenda for Change policy paper here:
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