It seems that in the run-up to its 70th anniversary celebrations the NHS was never been very far away from the media spotlight. Court cases such as the Charlie Gard case have been widely reported. There is an ongoing debate about whether it is sustainable in its present format and debate rages about whether various governmental promises about future funding are adequate or not. The achievements of the NHS are rightly heralded.

Against the background what appears to have been a quite ongoing, stormy political debate about NHS funding levels, one issue that all the major protagonists of whatever persuasion appeared to have either ignored is the amount of money is set aside to fund litigation costs. In this regard I make particular mention of an article in yesterday’s UK Observer[i] which reports that the number of hospital beds for people with acute mental health conditions where a consultant psychiatrist is on hand to oversee treatment, has fallen by almost 30% since 2009.

In a recent blog, we noted that in 2016 this figure was set at £1.6 billion, that is £1,600,000,000. In reality, the costs bill is much higher because this legal cost figure does not take account of the costs incurred in terms of staff providing records and statements, working with and being interviewed by lawyers or attending court and by implication, not undertaking routine but nonetheless highly important clinical and administrative work.  It may be difficult to quantify hidden costs figures precisely but unless they do exist and impact very significantly on productivity and quality of service.

In recent weeks there have been media reports of the UK government finding an additional £20 billion in NHS funding. The litigation set aside money is approximately 8% of that sum.

As was confirmed that the 2018 Civil Mediation Conference in May 2018, the NHS litigation authority, now renamed NHS resolution, that it has followed up on his previous commitment to embrace mediation. However, it was also announced at that conference that thus far is only being used in 200 or so cases.

In one sense this is to be welcomed. A commitment has been made and one bus that further progress will be made. However, one suspects that thus far only very modest benefits have accrued. It would appear that mediation has only been used in so called high end cases and that in other instances legal costs continue to accumulate disproportionately.

One suspects that however well-meaning the sentiments expressed by NHS Resolution may be, as things stand whilst the bull’s tail may have been tweaked, his rather expensive set of horns that all too obviously need blunting appeared to remain resolutely intact. Put another way, the elephant in the room is still very much in the room.

The implementation of a comprehensive mediation system the NHS will not result in litigation disappearing. However, In the context of civil and employment disputes and customer complaints, there would be legal costs savings of approximately 80%. There would also be a very significant reduction in hidden costs.

At the risk of oversimplifying, 80% of £1.6 billion is £1.28 billion. It will be seen that even if one assumes that this relation is interpreted as overly optimistic, the potential for saving very considerable sums of money is not diminished.

[i] “Number of NHS beds for mental health patients slumps by 30%” – The Observer,  22/07/2018