The NHSLA’s liabilities are the second biggest debt across all Government departments after nuclear decommissioning. This startling fact was shared with delegates at APIL’s annual clinical negligence conference earlier this week by a Department of Health civil servant.

My reaction was one of horror. How on earth has the NHS and the NHSLA allowed things to get so out of hand? Who, in the Department of Health’s hierarchy, thought that it was good practice to allow the NHS to be so negligent, so often, that its liabilities just ran away from any form of control?

It’s all very well for the DoH and NHSLA to talk about the NHS’s need to be a learning organisation and to support changes to prevent harm in the first place, but some concrete action is urgently needed. 

Why is it that time after time, experienced lawyers point to the repeated mistakes made by the NHS and nothing seems to change?  How can it be right that the NHS is still causing brain damage, as a result of negligent maternal and obstetric care, to the same number of babies as it damaged in 2006?  In the 2015-16 financial year, 42 per cent – over a billion pounds – of the compensation paid out by the NHSLA related to obstetric claims, paid mainly to brain damaged children.  

In many cases, lawyers and their clients are the whistle-blowers - alerting the NHS to its failings and asking for assurances that the same thing will never happen again to another patient. Time and time again, the NHS fails to react, denies that it was negligent until the last minute and does not seem to learn.

At the APIL conference last week the same civil servant talked about ‘black box thinking’ - a reference to the book with that title, by Matthew Syed. In the book he compares the aviation industry’s commitment to safety to that in the NHS. Every air accident is examined, the reasons for it are extracted and procedures changed, so that the same error never happens again. As a result, “for every one million flights on western-built jets there were 0.41 accidents – a rate of one accident per 2.4 million flights.”  Now compare that with the NHS. A National Audit office report[1] said that “that there was no systematic pattern as to how trusts determined what incidents required a detailed investigation” and that at one trust, “they assess the ‘ooo-er factor’ of an incident – that is, whether an incident is serious, potentially serious or unusual and therefore may warrant further investigation.” 

Ooo-er indeed. That same report indicated the NHS does not really know how many deaths results from patient safety incidents. It estimated that there may be between 2,181 and 34,000 deaths a year – but no-one knows, because no-one is collecting the right data. If the lower end is correct (and that is unlikely as it is from a survey of Trusts to which not all of them responded) that’s 5.9 preventable premature deaths a day. If the higher number is correct, that’s five 747 jets falling out of the sky every month.[2] Imagine if any other industry was allowed to continue to kill and injure its customers and get away with it on a similar scale: there would be an international outcry.  It is intolerable that the NHS is allowed to continue to operate with this degree of death and injury and high time it took urgent action to change.