Since the last edition of this text, the main changes in clinical negligence have concerned the economics of litigation rather than the substantive law. I am informed by the editors that the major developments and challenges have taken place in the Houses of Parliament rather than in the courts. The principles of law remains mostly familiar but its practice provides opportunities and challenges.
In my Foreword to the previous edition I expressed my concerns about the NHS Redress Act 2006 which I opposed in Parliament when Shadow Health Minister. Thankfully, very little has become of this enabling legislation – Anthony Barton’s chapter describes it as ‘fundamentally misconceived’. So it may be a good thing that so far it has proved to be merely useless, rather than worse than useless.
There has been wide-ranging legislation revising the ancient coronial system: the Coroners and Justice Act 2009.
Politics, society and natural justice demand that we develop a justice system that is accessible to all, fair and economically viable. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has effectively privatised access to justice for clinical negligence – legal aid is preserved for braindamaged baby cases. Access to justice is available to anyone according to the merits of the case. The indications are that the funding regime is working, as judged by the number of cases funded by conditional fees. Nothing is ever static. A concern now is that the fees claimed by claimant lawyers may be disproportionate in respect of lower value claims. The Department of Health proposes a consultation in respect of cost capping and fixed fees.
The common law is flexible, pragmatic, and robust. This is particularly so in how it addresses novel clinical situations and medical innovation. It nearly always finds the right answer. The best thing legislators can do is, by and large, to leave well enough alone. This is why it is important Parliament properly scrutinises two forthcoming Bills which address medical innovation and so raise issues of patient safety: the Medical Innovation Bill in the House of Lords, and the Access to Medical Treatment (Innovation) Bill in the House of Commons, which is unpublished at present. I am aware of no evidence that doctors are deterred from innovation by threat of litigation. Doctors are sued for poor practice, not innovative practice.
My concern in Parliament has always been to promote the interests of the individual, whether patient or medical litigant, whilst safeguarding the interests of the wider community. It is a delicate balancing exercise which requires informed debate. This competition between individual rights and community interests is especially prominent in clinical negligence. I share the editors’ hope that this text can in any small way inform such debate.
John Baron MP
House of Commons
(This Foreword was written for Clinical Negligence, Fifth Edition, publishing September 2015 by General Editors: Michael Powers QC and Anthony Barton with Sir Barry Jackson as Assistant Editor)