The immorality of compensation culture

The stories of Britain’s growing ‘compensation culture’ are as numerous as they are dispiriting.

There was the woman who won nearly £25,000 (plus £30,000 in legal fees) for having hurt her hip while using a revolving door at London’s Victoria and Albert Museum. There was the teacher who earned himself an extra £500 after straining his wrist restraining a pupil. There was the Rotherham schoolboy who was granted nearly £6,000 after having his hand splashed with hot custard. Given the sheer volume of compensation claims now being made each year, there must be thousands of stories like this. There are no accidents any more; there are only people to blame.

And of course, everyone knows who is responsible for this upsurge in cynical-looking lawsuits: it’s Claims Direct, or the National Accident Helpline, or some other part of the ever-growing army of ambulance-chasing lawyers intent on making a fast buck off the back of someone twisting their ankle on school-sports day.

Or is it?

In their new report, The Social Cost of Litigation, Frank Furedi and Jennie Bristow argue that it is not so much the existence of the unscrupulous no-win, no-fee lawyers that drives the compensation frenzy. Rather, they say, it is the fact that a culture of litigation and litigation-avoidance is now considered a perfectly normal part of social life. Informal relationships based upon trust, such as those between doctor and patient, have been supplanted by formal relationships founded upon mutual suspicion. ‘I’m not so worried about the very obvious, easy target – the lawyers who flourish in this culture’, Furedi tells me. ‘The more worrying thing is the normalised and institutionalised aspect of it. Which is why in the report we focus on the social costs rather than the financial costs.’

Nowhere are these social costs more apparent than in the public sector, where, in both healthcare and education, avoiding lawsuits has become routine. It is no longer exceptional for a doctor or a teacher to be concerned that their behaviour or one of their decisions might end up subject to a legal complaint; rather, such recourse is almost expected these days. Likewise, so-called service users, be they pupils’ parents or hospital patients, are encouraged to see themselves as potential complainants, to view themselves as consumers with a right to take the legal route if they feel like it.

This is a socially deleterious situation, says Furedi. ‘Relations between people are mediated by rules, procedures and the law, which in turn has the effect of fuelling mistrust and suspicion’, he says. ‘And because of that, the relationship between public-sector professionals and the users of the services becomes diminished. I would say that many of the big problems in the public sector – in particular the loss of the public-sector ethos – are linked to the fact that if you have people watching their back, then their commitment to the service they provide will dissipate.’

Indeed, the tendency for public-sector workers to think principally about covering their backs, rather than fulfilling their public-service vocation, prompts some tragic-comic anecdotes. In the words of primary-school headteacher Paul, interviewed in Furedi and Bristow’s report, ‘when there is an accident at school, the first concern is “lawsuit” – it used to be the child’. Elsewhere, the report tells us the story of Lorraine, an auxiliary nurse. Currently off work after injuring her back catching an elderly patient as he fell off the toilet, her managers have been far from sympathetic. Quite the opposite: they are angry that she violated litigation-avoidance rules. ‘They say you shouldn’t catch patients’, said Lorraine. ‘But what are you supposed to do – let them fall on the ground?’

This is one of the main social costs of institutionalising litigation-avoidance: the destruction of professional autonomy. Professionals no longer work according to their judgement, deciding how best to meet the needs of patients or pupils as situations present themselves. Instead, as Furedi explains, ‘they have to continually worry about whether their decision will lead to complaints, will the complaints lead to lawyers’ involvement, and will that lead to big claims. In that way, professional judgement becomes compromised and is replaced by a box-ticking culture.’

The prevalence of a box-ticking culture, itself a partial product of the institutionalisation of litigation-avoidance, is one of the main sources of that most common of complaints among doctors, nurses and teachers: a huge increase in paperwork. As Furedi and Bristow argue in relation to healthcare, the rise in the volume of record-keeping is driven less by clinical need than by the institutional demand to keep records. And why do healthcare bodies insist on such records? Because, as one GP put it to Furedi and Bristow, they need documentation that ‘will stand up in court’.

‘As a newer generation of doctors comes through, for whom completing detailed records is par for the course’, the report says, ‘this time-consuming litigation-avoidance practice becomes institutionalised’. Some doctors are understandably uncomfortable with the prominence now accorded to form-filling and record-keeping. ‘Seeing patients has become one tenth of my job’, says one report contributor, ‘[and yet] that’s why I became a doctor in the first place’.

The determination to avoid risk among health practitioners doesn’t simply result in endless back-covering paperwork. It can also result in a reluctance to take action, an overzealous aversion to intervention. The report quotes one patient who was seeking oral contraception: ‘I’ve got really good blood pressure for a fat chick. But the family-planning clinic still won’t prescribe me the pill – they just refuse to believe the blood-pressure reading.’

What is clear is that this situation, where the performance of a profession is institutionally inhibited, is not simply the product of avaricious, claims-seeking lawyers. Rather, the culture of litigation has fed off successive governments’ promotion of consumer rights in relation to public services. Hence the ubiquitous comment-and-complaint forms in hospital foyers. As Furedi tells me: ‘Ever since the early 1980s, there has been this fantasy about holding the public sector to account, [this idea] that claiming is a positive virtue. Yet in fact, all that it does is disorganise the service, encouraging dishonesty and litigation-avoidance.’

Indeed. In 1995, the National Health Service even went so far as to establish the NHS Litigation Authority (NHSLA), a body dedicated to dealing with litigation, complete with a ‘risk pool’ of cash. Yet by accepting litigation as an everyday reality, and by assuming that the NHS is liable, lawyers were effectively invited to chase ambulances. So successful has the blame game between the public sector and consumers been that, as of March 2011, the NHSLA estimated potential liabilities at £16.8 billion, of which £16.6 billion related to clinical-negligence claims.

Where healthcare has gone, education looks set to follow. State schools already pay a service-level agreement in return for legal support for litigation claims, and law firms are currently hawking their wares to new academy schools. When there is a constant threat of legal action – for example if a child does badly in exams – one can expect teachers to refrain from taking risks in their approach to education.

In conversation, Furedi is steadfast: ‘There shouldn’t be compensation claims for financial reward in the public sector. It is a completely irrational process because who pays for it? It is not the nurse or the teacher or the doctor who is found liable. No, it’s the taxpayer, the public purse – that is what pays for it. It leads to an irrational use of resources. People talk about the postcode lottery. This is even worse because resources are distributed according to whether you have a good lawyer or a bad one.’

‘It is also immoral’, concludes Furedi. ‘I think there has to be a different way of holding people to account.’

Tim Black is senior writer at spiked.

The Social Cost of Litigation, by Frank Furedi and Jennie Bristow is published by the Centre for Policy Studies. Download the report here.