Today Polly Toynbee is writing in the Guardian about claims for compensation against the state and its servants in cases of negligence. She thinks
a robust attitude towards risk is fundamental to our national state of mind.
I kind of agree. Sometimes you just want to say to people “get over it”. Sometimes that’s difficult though. If a distracted surgeon whips off your right rather than your left leg or damages your ability to have children by not applying enough care in a gynacological procedure that’s not really the right response.
That’s why I was disappointed to see that she is pondering, in regard to legal claims for compensation, whether
the state and its servants (should) be immune – so long as there is a public hearing and disciplinary action taken?
whether the NHS should be exempt
She sees merit in taking away the individuals right to claim against the state because, in relation to the NHS at least
this new emphasis on individual rights and claims is just not compatible with social democratic ideas of collective social protection.
This is where we part company. As far as I’m concerned the right to seek redress through the courts against the state is a non-negotiable freedom which if given up lightly sets society and the rights of the people back hundreds of years. Dressing such a backward step up as “social democratic” is disingenous to say the least.
Toynbee’s argument is that the right to sue the state is costing us too much money. She quotes the figures to prove her point
medical negligence claims stood at £53m in 1990. Last year it was £500m with some £5bn worth of cases now pending
She then asks us to consider what we could with the cash saved by foregoing the right to sue
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).
It does seem a lot. But are her figures right ? The short answer has to be a resounding no. For a start the £5bn sum she mentions is not the same as money paid out by the NHS in compensation to people who have successfully proved negligence against doctors. The latter figure is represented by the figure of £500 million.
£5bn is the total sum of all claims pending. Most of these will never go to court since they are without merit. Some will be settled at figures which are a fraction of the amount claimed and another large number will be defeated with costs going to the NHS. Toynbee herself admits that such weak claims exist by quoting cases where
claims for accidents in playgrounds that didn’t exist at the time of the alleged incident
She does this in order to bolster her case that we’ve all gone compensation crazy. Maybe we have, but a council lawyer who is half-awake might notice at an early stage that such a claim is faulty and apply to have it struck out and at the same time make an application for the council’s legal costs from the claimant.
She also forgets to take into account the costs of the public hearings she proposes as an alternative to court cases. I’m not sure where she gets the idea that such quasi-legal exercises are neccessarily cut-price affairs but she’s on to a loser if she continues to argue it.
My reading of the figures would tend to show very little between the present system (with the imperfections and exasperations we know about) and Toynbee’s alternative (with unknown imperfections and exasperations). The only real difference would be that instead of having the right to seek reparation from the servant of a body that negligently disabled you or ruined your sex life your case would be subject to an undefined and uncosted complaints procedure if it didn’t qualify for a public hearing. If such a procedure was truly cut-price it would have to be an internal NHS affair. Alarm bells should be ringing at this point.
Casual proposals to give up hard won rights against those who rule us when they have done something wrong should not be given the time of day by any of us, social democrats or not. Not only are the proposals to take away important safeguards against the power of the state argued for mendaciously they represent a train of thought which assumes that the rights of the state are more important than those of the people who elect the government. They are not.