Delay is in the news again. Delayed Brexit, delayed trains and add to that delayed NHS treatment.
In this in-depth piece, Robert Dempsey, an associate in the personal injury department of Roythornes, explains why negligence claims are likely to be the result of a new NHS report acknowledging failures in cancer treatment
This is an edited version of an article which first appeared on Lawyer Monthly.
On the 22 March the National Audit Office, the body responsible for auditing government departments, published a report highlighting delays in NHS treatment for elective (non-urgent) care and cancer treatment. This has led to suggestions that this will spark an increase in negligence claims as a result of delayed treatment.
The figures for elective care show that the standard aim of 92% of patients being seen by a consultant within 18 weeks of referral has not been met on a national level since February 2016. By November 2018, the figure was as low as 87.3%. The target for cancer treatment is for 85% of patients with suspected cancer to be treated within 62 days of an urgent GP referral; this target has not been achieved on a national level since the end of 2013.
The National Audit Office has provided a number of explanations for the increase in waiting times, including staff shortages, a lack of available beds and pressure on trusts to provide emergency care; perhaps surprisingly, the ageing population is not cited as a significant factor. So how well-founded are suggestions that an increase in delays will lead to an increase in negligence claims?
The starting point for any clinical negligence claim is well-established. A doctor will not be negligent if he acts in accordance with an accepted practice – and it is here that delays could constitute negligence. If the above targets are recognised as ‘accepted practice’, any failure to reach those targets represents a departure from the necessary standard. This would be a persuasive argument in establishing negligence.
It is, however, not completely straightforward. There is a second strand to the test for clinical negligence, namely, can any departure from the accepted practice be logically justified? One can see how doctors may seek to argue financial constraints were justification for delay.
An added complication is that accepted standards can change with time. It would be unfair and overly simplistic to suggest any shifting of the goalposts but, if it becomes apparent that the targets are unreasonable, less ambitious benchmarks could be introduced.
This may already be taking place in elective care. In the report, the National Audit Office points out that NHS England asked trusts to ensure waiting times to see a consultant, by the end of March 2019, would be no longer than the March 2018 figures – in effect, explicitly dropping the 18 week standard.
In addition to establishing a negligent delay, it would also necessary to establish that any delay caused additional injury or suffering. This is not always the case, and it is open for the trust to argue any subsequent illness was inevitable. These ‘causation’ arguments are particularly relevant in cases involving the delayed diagnosis of cancer.
Unfortunately, the legal test is far from satisfactory. If it is established that at the time any cancer should have been identified the patient’s chance of survival was already less than 50%, then there would be no negligence claim. Whilst there is some merit in this argument, it does lead to a situation whereby the survival rate could diminish slightly, from 51% to 49%, and there is a claim to a situation whereby a reduction from say 49% to 10 % would see no remedy despite the significant drop in the chance of survival.
It is only fair to point out that missed targets in cancer care are, in part, due to the increased number of referrals by GPs. While GPs are taking positive and proactive steps to make the referrals, hopefully resulting in an earlier diagnosis for patients, the system is, unfortunately, unable to cope with the increased numbers. This may, again, point to the possibility of less ambitious targets and a different standard of care becoming the norm.
Waiting times, whether imposed by governments or adopted as good practice by the medical profession itself, are an important barometer by which the efficiency of the NHS can be measured. At best delays are an inconvenience and, in most cases, they add to an already distressing situation for patients and their families. In the most serious of cases, a delay in treatment can lead to injury or death.
If these situations cannot be avoided, it is important to be able to navigate through the difficult task of establishing whether the delay constitutes negligence that has caused loss and injury.