Clinical negligence needs the Rehab code

Why doesn’t the Rehabilitation Code extend to clinical negligence and how might patients benefit if it did? Our medical director Dr Alex Smallwood examines why NHS Resolution needs a ‘common-sense code’.

It is one of the great ironies of healthcare that an individual victim of hospital negligence may get worse care than someone injured in a road traffic accident or industrial injury.

The reason for this is that the affected adult or new-born baby gets no benefit from the Rehabilitation Code which has existed since 1999, and updated as recently as 2015.

The Rehab Code enables a claimant’s solicitor and the compensator to work together proactively to address the needs of the injured claimant as early as possible, and accelerate the recovery of the injured claimant.

Before the Code was created, an injured claimant only got standard NHS care until third party liability was established.  Even though starting alternative treatment and rehabilitation earlier was known to benefit the patient journey and patients simply did better, delays were a fact of life, even though they often increased care costs in the long-term and thus the size of the potential claim.

The Code turned this around, and has long enabled the personal injury market - insurers, solicitors and case management companies - to facilitate early rehabilitation on a balanced risk basis to the insurer.

It has allowed all three to work together to provide early intervention, with obvious outcomes for the injured parties.   Patients have been able to get back to function in some capacity sooner by identifying and providing appropriate adjustments. It is widely understood that being “back on track” helps a claimant’s wider wellbeing, including their social and family lives.  All of the personal injury stakeholders have benefited from this common-sense Code.

But none of this counts for survivors of clinical negligence.  While these people face the same complex, long-term, life-changing and life-limiting injuries as those in the ‘commercial personal injury market’ covered by the Code, the NHS patient injured by a medic, drug or system failure, does not automatically benefit from facilitated early rehabilitation before liability is established, to ensure that their outcome is improved.

Surely that same facility should also be applied early in clinical negligence cases to get them on a clearly directed treatment pathway as quickly as possible?

Possibly, hospitals and patients do not routinely consider that once treatment error is discovered, the patient outcome could be better if arrangements for private or more intensive treatment unavailable on the NHS were accessed earlier on.  If clinical negligence was included in the Code, such a possibility could be flagged up earlier.

What if NHS Resolutions were to abide by the Code?  There is an argument that where insurers have been able to develop a system of treating personal injury cases pre-emptively at risk before an admission of liability, then NHS Resolutions could do the same in potential clinical negligence cases, similar to the process used now in cases covered by the Code.

If it did, then taking the example of birth related injuries, it could enable different external treatment options outside the NHS, or more intensive input at an early stage in the baby’s life, before liability is established.  That would establish for the child ongoing care at a more intensive level during its growth and development, if needed, providing it with better long-term outcomes and prospects.

Currently with no Code for medical negligence such cases are dealt with in civil or criminal law. Part of the difference here is the ability of the NHS to delineate in the treatment of someone with iatrogenic injuries – those inflicted by physicians, the wrong medication or failed systems say - where the same department that may have failed the patient is also responsible initially for trying to fix the outcome.  This is a situation presenting potential conflicts of interest.

Bringing such an example under the Code would provide equivalent support for an equivalent injury caused by a third party.  It would afford the potential for earlier access to non-NHS specialist care and case managers.  It would also dilute the pressure on the department of clinicians involved in the causes of the injury to resolve it.