Tomorrow a report will be published that explores the impact of the compensation culture on the NHS and education. What the study found was that the damage caused by the litigation revolution cannot simply be measured in the language of hard cash. Yes, the financial costs of litigation are considerable: payouts by the NHS Litigation Authority have trebled over the past decade and the total figure stood at £911m in the financial year 2010-11.
But what the Centre for Policy Studies report also indicates is that the energy and time devoted to dealing with these claims exact a far higher social cost. One senior hospital administrator revealed that she can spend between three and 12 days a month dealing with compensation claims and the fallout from them. A head teacher reported that her nursery school often received letters from claimants’ lawyers looking for evidence of liability. She observed: “Every time we get one of these letters, it’s at least a week’s work.”
Advocates of Britain’s litigation revolution assert that claims-making encourages accountability and helps improve public services. Not true!
Rather, a litigious climate helps foster an aversion to responsibility. Practices aimed at avoiding litigation — such as complicated risk assessment — can damage the quality of care. The litigation revolution has led to the flourishing of a box-ticking culture where the need to watch your back often trumps the needs of patients or pupils.
Instead of increasing safety and accountability, today’s culture of litigation has resulted in significant costs to the quality of services, the experience of those who use them and the role of professionals. Its corrosive impact is particularly striking in the health sector.
Indeed this culture directly contradicts the ethos of care. When NHS staff are preoccupied trying to avoid complaints, their energies and attention are diverted from patient care. As one nurse confided: “I feel that I am not allowed to follow my instincts and respond to my patients’ needs.” Compassion, empathy and judgment, all integral to an ethos of care, are threatened by management practices introduced to avoid litigation.
The report has also found that the influence of the compensation culture has expanded significantly during the past 15 years. At the turn of the 21st century the main social cost of litigation in the public sector was borne by the NHS. During the past decade, education has also become a victim.
The fear of litigation has a significant impact on the way schools are run. It has fuelled a climate of mistrust between staff and parents, and has complicated the relationship between pupils and their teachers. Numerous heads and teachers report that they have altered the way they operate in order to avoid claims. When teachers become focused on avoiding potential complaints from parents, their professional judgments take second place. Invariably it is the quality of schooling that suffers and ultimately it is our children who pay the price.
It is tempting to blame ambulance-chasing lawyers for the normalisation of the litigation revolution in the public sector. Unfortunately the problem is far more profound. The culture of complaining and of claiming has become widespread among a significant section of the public. In the public sector the avoidance of complaints has become an end in itself.
The report points out that numerous people have been told by friends and professionals to seek redress through the courts because it is “the responsible thing to do”. One mother who refused to follow such a course of action after a playground injury to her child was criticised by other parents for not being a “responsible” citizen.
What shocked me during the course of this research was to discover that demanding recompense for accidents is now perceived not only as a commonsense way of gaining financial compensation, but as a way of holding public services to account. From this standpoint, suing is not seen as the selfish act of the “have-a-go” parent but a selfless, responsible act to stop other children from having similar accidents.
Far too many members of the public believe that getting a lawyer to write a letter is the first step to “getting something done”. That is why the first step towards reducing the social costs of litigation in the public sector is to raise awareness about its social consequences.
What is required is a public campaign that challenges the legitimacy of litigious attitudes. The restoration of the ethos of public service requires that the idea of accountability is separated from the pursuit of financial claims. After all, litigious payoffs punish the taxpayer and not those individuals who bear responsibility for harm.
The Social Cost of Litigation, by Professor Frank Furedi and Jennie Bristow of the University of Kent, is published tomorrow by the Centre for Policy Studies.