Legal aid cuts may have fuelled rise in clinical negligence costs

Authors: Tom Moberly 

Publication date:  20 Sep 2017

Cuts to legal aid have helped fuel rises in the amount that clinical negligence costs the NHS, Robert Francis QC has said.

Francis, who led the public inquiry into failings at Mid Staffordshire NHS Foundation Trust, raised the issue at a Westminster Health Forum seminar on clinical negligence in London on 14 September. He said that restrictions on access to justice had not helped to contain increases in litigation costs, and may have fuelled rises.

He cited a National Audit Office (NAO) report, published earlier this month, which showed that NHS spending on clinical negligence schemes has quadrupled in 10 years.[1] He said that the number of cases had risen during his working life.

“I have been in practice at the bar for 43 years and most of that time I have been involved in clinical negligence cases. When I started, they were very rare,” he said. “That has changed a lot. There was the halcyon period when legal aid was available to bring claims, the abolition of which has caused, I suspect, many of the problems we see in the NAO report.”

The NAO reported that NHS trusts’ spending on the clinical negligence schemes has quadrupled in 10 years, from £0.4bn (€0.44bn; $0.52bn) in 2006-07 to £1.6bn in 2016-17. The number of successful claims where damages were awarded more than doubled over this period, rising from 2800 to 7300.

“Not surprisingly, there is anxiety about litigation and the rise of it,” Francis said. “This has led to attempts to decrease the cost of negligence claims—largely by making access to justice more difficult, a trend which is yet to stop.”

Francis said that measures had been introduced in an attempt to reduce the legal costs of clinical negligence cases. Some of these involved the introduction of additional pre-trial steps, which itself increased the chances of costs being charged and incurred, he said. “So far, none of these steps has worked in reducing the number of claims or the costs,” he said.

He added, “There needs to be some work around what can be done to avoid those costs being incurred. Rather than saying ‘let’s do something which stops people making claims.’”


  1. Torjesen I. Government needs coherent policy to tackle rising clinical negligence costs, says financial watchdog. BMJ  2017;358:j4159. [Link]   [Link] .

Tom Moberly The BMJ

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