Schools and hospitals are hamstrung by a rampant litigation culture that has seeped through most areas of health and education, according to a report being published tomorrow.
The health service is spending almost a billion pounds a year on compensation while schools waste time and money dealing with “absurd” lawsuits from children and teachers, for example those who have been scratched by roses or hit by a ball.
The report, The Social Cost of Litigation, was written by Frank Furedi, professor of sociology, and Jennie Bristow, a writer and researcher, both at the University of Kent.
While castigating “ambulance-chasing” law firms, the report lays greater blame on the atmosphere of “back-covering” that it says has permeated institutions.
This means that staff were more concerned with box-ticking, meticulous note-keeping and ensuring that they have followed regulations than with what was in the best interests of the child or patient.
Many of those suing schools, hospitals or local authorities held the attitude that they were responsible citizens doing their moral duty to protect others from a similar fate, the report says.
“Demanding recompense for accidents is now perceived, not only as a common-sense way of gaining financial compensation, but as a way of holding public services to account,” it says.
“The increasing fear of litigation is extremely damaging to the professionalism of doctors, nurses and teachers: it erodes autonomy, stifles innovation, leads to defensive practices in both hospitals and schools, and encourages greater bureaucracy.
“Best practice is now defined as having checked all the boxes in a quality assurance form rather than doing what is best for the patient or pupil.
“Attempting to rein in ambulance-chasers and greedy lawyers will only deal with the symptom of a deeper problem. In particular we need to challenge the expectation that professional best practice in the public sector should be measured by the absence of complaints or litigation.”
The report quotes a school at which staff were amazed to receive chocolates, rather than a solicitor’s letter, from parents whose child fell in the playground and hit his head on a bench, needing stitches. “Nowadays we expect the opposite to happen,” the head teacher said.
It says: “The head teacher’s story is a disturbing indication of how far things have gone. 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.
“The combination of an engrained compensation culture and litigation avoidance is bleeding the health and education services dry.”
Payouts made by the NHS Litigation Authority have trebled over the last decade, reaching £911 million in 2010-11, the report says, and its liabilities are now estimated at £16.8 billion.
Only 3 per cent of medical negligence claims successfully received damages from a court.
Yet defending themselves in advance from potential litigation had become institutionalised into everyday practice for many health and education staff.
Doctors often over-referred and over-treated patients, to cover their backs, while teachers were too nervous to be eccentric or innovative with children.
The report says: “It is often the headteacher, CEO or healthcare professional who finds his or her time gobbled up finding and filling in the paperwork to defend themselves or their organisations against claims.”
This has a damaging effect on children’s play, meaning that some do not get contact with “earthly reality”, the authors say.
Ofsted, the schools regulator, was partly responsible for encouraging a culture of moral cowardice among professionals, the report claims.
The regulator sought parents’ views on their children’s happiness, feelings of safety and the school’s attitudes to bullying which, the report says, “creates fertile ground for the transformation of customer complaint into litigation claims”.
Claims against schools included £3,000 awarded to a pupil who suffered cuts from a rose bush, £2,500 for a student who had a fire extinguisher sprayed in his eye and £2,000 for another in recompense for being hit by a ball kicked by a teaching assistant.
The report says that some teachers took their pupils on school trips to the playground because of fears ofd litigation.
Teachers also took legal action, costing councils an estimated £6.7 million in 2010; in one case a teacher received £2,000 for stubbing her toe on a box. But for every pound paid as compensation to staff, another £1.25 went to lawyers.
The report’s authors call for a return to the “humanising” principles of professional judgment, to reduce the knee-jerk recourse to legal action.
“Every time we bring a claim against our health or education services we are, in effect, suing ourselves,” they say.