We’re delighted to announce that solicitor Fiona Dabell has been shortlisted for the inaugural Action Against Medical Accidents Rising more…
Is it ethical to sue the NHS?
The NHS – created from the ideal that good healthcare should be available to all at their point of need – is one of our proudest achievements, not just from a medical perspective, but also for social justice.
So, if something does go wrong with your medical treatment, is it ethical to sue the NHS?
Critics will argue that suing the NHS is morally and financially wrong, and that funds are diverted from trust budgets to meet the cost of insurance. But on the other hand, if a person is injured and unable to work as a result of poor medical treatment, should the state not support them?
So why do people sue the NHS?
People sue the NHS because they feel as though they’ve had poor treatment. But poor treatment, inconsiderate treatment and sometimes even treatment which breaches the doctor’s duty of care isn’t sufficient to bring a medical negligence claim.
In order to substantiate a claim, the treatment must be considered ‘unreasonable and irresponsible’ when compared against the benchmark set by other doctors who are practicing in the same field, at the same time.
But even if treatment is irresponsible, we must show that it has affected the patient in a harmful way. For example, a doctor treating a patient with the wrong drugs, or even leaving something inside a patient (provided that it doesn’t require removal), may not be enough to prove grounds for a claim.
Sometimes it’s enough to make a complaint. Every NHS organisation has a complaints procedure and you have the right to have your complaint heard.
What will suing the NHS actually achieve?
Most people who sue the NHS will receive compensation, but in reality, people just want their lives to return to normal. They want, for example, to regain their sight or the use of their limb, or they want to be able to care for their family or continue in their career.
In fatal cases, people want their loved one to still be with them. Frequently people say that they “just don’t want this to happen to anyone else”.
The principal of compensation is to try to put a person back in the position they would have been had their injury not occurred. It isn’t awarded so that a person can benefit financially from what has happened to them.
Compensation will pay for someone to learn brail or for state-of-the-art prosthesis. It could also pay for childcare assistance or to compensate someone for the fact that they can no longer work.
The NHS Litigation Authority is taking an increasing interest in researching prevention through The Serious Incident Reporting and Learning Framework (SIRL). In addition, patient charities, such as AvMA and the National Patient Safety Agency, have been campaigning for years for the introduction of joined-up risk monitoring within the NHS.
Many people also worry about whether the doctor will face disciplinary action if they are sued. More often than not they won’t, and in many cases they won’t even know that there’s a case against them. The General Medical Council (GMC) is the body responsible for monitoring whether a doctor is fit to practice and it’s for them to look at the success rates of the doctor against whom a complaint has been made.
One successful clinical negligence claim is unlikely to have a significant impact on their ability to continue practicing and an ordinary doctor acting reasonably and responsibly is very unlikely to be sued.
So, is it wrong to sue the NHS?
There is no easy answer to this question; apart from it’s sufficient to say that medical negligence claims are never brought lightly. Punitive sanctions against the NHS do not form part of a case, as in the USA, so making a claim will ultimately lead to more joined-up risk monitoring and an overall reduction in clinical negligence claims.
When someone suffers a life changing injury that means they can no longer look after themselves or their loved ones, are they not entitled to be compensated by the organisation responsible for that injury?
Defence of the NHS is vital, but where injury occurs as a result of the treatment received, it’s important that the NHS also has the framework in place, both to compensate for it and to learn from it.
Suing the NHS will never feel comfortable and preserving its ideals and principals for future generations is the ultimate goal, but it’s too broad a statement to state that it’s morally and ethically wrong to sue the NHS.