Victims of clinical negligence are able to claim compensation for private healthcare costs, so that they do not have to return to the NHS to access much needed medical treatment or therapies for their injuries. This is facilitated by Section 2(4) of the Law Reform (Personal Injuries) Act 1948, which a wholly misjudged campaign seeks to repeal.

One of the reasons it is so badly misjudged is that, not only would it be deeply damaging and unfair for victims of negligence, but there would be detrimental unintended consequences for the NHS itself.

APIL’s opinion polling shows that repeal of Section 2(4) would not have public support. If they needed to be treated for harm caused by NHS negligence, 51 per cent of UK adults think the NHS should pay for them to be privately treated. Only around a third (35 per cent) think the NHS should not cover these private treatment costs.

This is an issue which affects people with life-changing injuries and the NHS simply does not have the resources to support and treat them efficiently and fairly if section 2(4) is repealed. Rehabilitation in cases of very serious injury is a postcode lottery in the NHS and yet the right rehabilitation can be crucial if the injured person is to have any decent quality of life.

Victims would also be forced to return to the establishment which harmed them. Some people need care for the rest of their lives and should not be at the mercy of the system which let them down. 

Our opinion polling also shows that those who have been harmed by the NHS would be re-traumatised if they had to return for treatment. Of those harmed by the NHS, 64 per cent would feel anxious, scared, distressed, unhappy, or angry if they had to return to the NHS to be treated.

Opposition to the NHS covering private healthcare costs is, unsurprisingly, driven by concerns about the impact this has on NHS finances and resources. However, APIL’s research shows that, in reality, Section 2(4) adds only a small amount to the overall compensation bill. For example, government analysis uncovered by APIL shows that only 4 per cent of all clinical negligence damages spending relates to therapy and treatment. These costs include private healthcare services which can be claimed for because of the existence of Section 2(4). In contrast, the vast majority of damages spending relates to losses, such as social care, which would be unaffected by changes to Section 2(4).

This demonstrates that section 2(4) does not have a significant impact on clinical negligence spending, and that its repeal would fail to significantly reduce costs. Repeal would only serve to deprive victims of negligence of the private treatment which they need.

Let’s also not forget that NHS resources are overstretched as it is. Repeal of section 2(4) would mean that everyone who is injured through negligence will have to receive NHS care, including people injured in car crashes and at work, care that otherwise would have been privately provided and funded by insurance companies. The pressure on the NHS would very quickly become completely unsustainable.