Happy Birthday NHS

As the NHS turns 75, Dr Michael Devlin, Medical Defence Union (MDU) head of professional standards and liaison looks back at some key legal milestones and examines the challenges that lie ahead

On 5th July this year, it will be 75 years since the NHS came into being. During that time the NHS has been at the forefront of medical advances, performing many world firsts. These include the first CT scan in 1971, the first test tube baby born in 1978 and more recently, NHS hospitals played a key role in providing evidence of the use of  dexamethasone to effectively treat patients with Covid-19, helping save an estimated one million lives worldwide.

The NHS is needed more than ever before but it and its staff are under increased pressure. Despite this, doctors and nurses continue to top the charts of the most trusted professionals. 

Here we look back at some landmark medico-legal cases, many of which still shape NHS care and treatment today as well as examining key challenges facing this hard-pressed institution:

1957 – The Bolam test is established

John Henry Bolam suffered severe injuries during a course of electro-convulsive therapy (ECT). He sued and the landmark legal judgement that bears his name continues to influence the behaviour of today’s healthcare professionals when judging whether there has been a breach in their duty of care in the treatment of their patients (negligence).

The Bolam test established that a professional is required to exercise the ordinary skill of a competent practitioner in their field. A health professional will be judged to have come up to the required standard of clinical care if a responsible body of medical opinion, even a minority one, would find their actions acceptable.

1988 – MDU pays out its first claim of over £1 million 

The MDU becomes the first medical defence organisation to pay compensation of over £1 million. This settlement was paid to a man who suffered severe brain damage following an operation to remove a cyst on the brain. Today claims for compensation involving patients treated by the NHS regularly exceed £20 million and can even reach £30 million. 

2015 – Montgomery judgment establishes informed consent

This case concerned a woman who had given birth to a baby with cerebral palsy as a result of shoulder dystocia. The patient, who had diabetes, expressed concerns about the size of the baby but she was not warned about the risks of a vaginal delivery or offered a caesarean section. While her claim was initially unsuccessful in the Scottish Court of Session, the patient eventually took the case to the Supreme Court which ruled that a doctor has a duty to take reasonable care to ensure the patient is aware of any material risks in proposed treatment and reasonable alternatives.  

Unlike the Bolam judgement, the Supreme Court approached this from the patient’s, rather than the doctor’s perspective. A risk would be ‘material’ if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. It established the principle of informed consent in UK clinical negligence law. 

2022 – NHS claims liabilities pass £100 billion for first time

At the last estimate, the cost of meeting future claims liabilities for the NHS in England stood at a staggering £128 billion, a figure which has increased more than six-fold in the last decade. It was £17.5 billion in 2011.

This enormous financial liability for the NHS doesn’t exist in isolation. Every penny expected to be spent on claims means less money for patient care. This is not a sustainable situation and legal reform is desperately needed to rebalance the system.

2022 – Staffing shortfalls pose risk to patient safety

The Health and Social Care committee’s workforce, recruitment, training and retention in health and social care report highlighted the worrying risk posed to patient safety by staffing shortfalls. Without enough trained clinical staff, the NHS cannot address the current waiting list backlog or adapt to the increased demand on it expected as our population ages.

Study after study have demonstrated doctors and other healthcare professionals are suffering from burnout. This is not good for them or patients. The government must do more to support doctors’ wellbeing and implement its Long Term Workforce Plan without delay.

Read the MDU’s commentary on the newly-published Long Term Workforce Plan here


Now test your knowledge on Britain’s health service with MDU’S NHS 75th anniversary quiz

For more information and help with tackling negligence claims, check out MDU’s Opinion Former profile.