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THE GUARDIAN |
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COMMENT
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Be robust
about risk
Compensation claims are starving the NHS of vital funds, and turning us into a society that feasts on blame Polly
Toynbee Gillian Beckingham, a 45-year-old mother of three, has just been charged with the manslaughter of seven people. She risks maybe three years in jail. So what did she do? Was it a reckless drunken drive after a night out that ended in ploughing into a bus queue? No, this middling council official, from Barrow-in-Furness, is charged with criminal responsibility in connection with an air conditioning unit in the council's Forum 28 leisure centre, the alleged source of an outbreak of legionnaires' disease that infected 140 people. The case turns on who exactly was responsible in what chain of command. Sub judice means no more can be said about this astonishing case yet. But it's the first time a council official has faced such a criminal prosecution. New corporate manslaughter legislation responded to public clamour for "accountability" after fatal rail crashes where no senior heads rolled. If this now means prosecutions of government officials with risk of imprisonment, it sets a dangerous precedent. This is just another manifestation of the appetite for blame: more scapegoats and sin-eaters will be sought. It springs from the same mindset that demands compensation for everything. It is a profoundly damaging phenomenon, socially and psychologically, making everyone a victim of someone else's fault. (Doctors find even genuine victims tend not to recover until their claim is settled). "Was it an accident - or could someone be to blame?" ask TV ads for ambulance-chasing no-win-no-fee solicitors. Suing the state is big business. Consider what it is costing the NHS: medical negligence claims stood at £53m in 1990. Last year it was £500m with some £5bn worth of cases now pending. One of the bizarre examples has been the parents of dead children whose organs were removed complaining bitterly that they have only been given £1,000, while the Alder Hey parents got £5,000. What price children's organs? The reverence afforded to these parents shows what an easy touch officialdom has become. Who dares say: "Nonsense! Don't displace your grief for your child on to missing remains, seeking someone to blame." Any manager or politician who dared to try an old-fashioned brisk response to risk would not survive long. The concept of the act of God died along with God himself. Lord Woolf brought in conditional fees (no win, no charge) in 2000 with the best of intentions - to let the poor as well as the rich afford to sue. It may have eased the legal aid bill (his other intention), but the unintended consequence has been this great boom in the cost of cases against government. A report last week from the Local Government Association and Zurich Municipal (which insures councils) says most authorities have seen a big jump in the number of cases and the size of claims since Woolf's conditional fees began. For councils it's not just the cost of dealing with the claims and the payouts, but the price of new systems to prove that they take due care over every conceivable mishap, now that no risk is acceptable. Schools are targeted increasingly, hamstringing teachers and preventing outings and activities. Playgrounds are targeted (including claims for accidents in playgrounds that didn't exist at the time of the alleged incident). One metropolitan council in the north-west has seen claims double in each of the last three years. The average value of a claim three years ago was £2,500, but this year it is £5,500. The rising number of spurious claims delays genuine ones, while the number of staff needed to process them has risen by nearly 50%. Is this the way most people want their council tax and NHS funds to be spent? Shouldn't they be asked? It is easy to tug heartstrings in local papers with the story of a council tree that fell on a child in the park - easy to start the "who is to blame?" cry. Barrow police and prosecutors faced a local hue and cry to find someone guilty for the death-dealing air conditioning. Tracking down failures in systems and seeing that things are put right and don't happen again is reasonable, but suing may not be. Lawyers for claimants say - with varying degrees of self-interest - that the true scandal is the number of people who never make a claim when they should. They say that people only want the wrong recognised and put right, an apology, an explanation and a promise of reform; if so, there are better ways of doing that than the state doling out mystifying sums for pain or grief. In the end this is a political question, and politicians of all parties are in dereliction of duty if they do not dare to put the question to the voters. Do you want individual compensation against the state - with your taxes spent this way? Or should the state and its servants be immune - so long as there is a public hearing and disciplinary action taken? This goes to the heart of the individual's relationship with the state - the social contract between citizens. The chief medical officer has made proposals for reforming medical negligence: all babies damaged at birth will get fixed compensation without having to prove fault, as any damaged child has the same needs. The sum will be paid out by the year, not in a lump, avoiding the family getting a huge windfall if a child dies. But this is modest stuff. The real question is whether the NHS should be exempt. The social contract between patient and state is quite different from a private contract. After all, the welfare state should provide whatever lifelong care a damaged patient needs, regardless of blame or bad luck. Unlike a private company, the state, whether or not it is to blame, has to pick up the medical and care bill anyway. But this new emphasis on individual rights and claims is just not compatible with social democratic ideas of collective social protection. My guess is that, put to a vote, citizens would not want these spiralling claims upon their NHS and their council tax. They, too, decry this new caution, this namby-pamby cotton-woolling of everything in a risk-averse climate created by fear of legal claims. Given the choice, most might vote for payouts of small, token sums, while demanding better, rapid public complaints procedures. It's easier for officials or doctors to confess transparently once the threat of hefty damages is removed. After all, think what the £5bn worth of claims now hanging over the NHS would buy, as well as the uncounted billions in slip-and-trip council cases. It could buy a universal network of children's centres attached to every primary school, with childcare for every under-five whose parents wanted it. It would buy wrap-around support for young children at risk of lifelong damage from family dysfunction. And there would still be plenty left to pay all student tuition fees (for those misguided enough to waste it like that). Too often politics revolves around the less important: a robust attitude towards risk is fundamental to our national state of mind.
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