Thinking of bringing back Crown Immunity for the NHS? Here’s why you should think again.

I think the debate regarding costs in medical negligence claims reached a new low yesterday with the Guardian publishing an article by Polly Toynbee suggesting that the time was now right to bring back Crown Immunity for the National Health Service.

Crown immunity is a concept that dates back to Roman times. Roman Law was clear -the emperor is not bound by statute and ‘what pleases the Prince is law’. The doctrine continued to be practiced in feudal Britain with the maxim ‘the King can do no wrong’ and it was not until the post war Labour government of Clement Atlee passed the Crown Proceedings Act in 1947 which made the Crown (when acting as the government) liable as of right in proceedings whereas before it was only liable by virtue of a grant of a fiat (special permission to bring court proceedings).

The newly created National Health Service therefore became liable for all acts of negligent injury committed by staff employed by the Ministry of Health. But Crown Immunity remained in place for NHS Trusts in relation to other matters – such as the safety of buildings or food hygiene regulations. Crown Immunity was only finally removed from the NHS on 1st April 1991 by the passing of the National Health Service Community Care Act 1990.

Pressure to introduce such legislation had followed the salmonella food poisoning scandal of August 1984 at the NHS Stanley Royd Hospital in Wakefield. 355 patients and 106 members of staff poisoned due to poor food hygiene practices. The outbreak caused or contributed to the death of 19 patients. A public Inquiry found that cause of the outbreak was salmonella which was probably brought into the kitchen in contaminated chickens and cold roast beef was the most likely vehicle of the infection. The infection was able to multiply because the beef was not properly refrigerated. It had been cooked, cooled and left in the open for 10 hours before being served with a salad. A number of unhygienic and unsatisfactory practices were found to have been allowed to go unchecked in the kitchen.

The hospital was an old Victorian asylum but kitchen renovation proposals had never got to the top of the hospital or regional priority list. Medical and nursing managers were criticised for not seeking or accepting help from external experts both in the investigation of the incident and in the treatment of the patients affected by it. Admissions to the hospital had recommenced halfway through the outbreak.

As a direct result of the poor management standards found at this Trust, the NHS eventually lost it’s Crown Immunity for all statutes – by way pressure being brought on the Government to pass the National Health Service Community Care Act 1990. This brought the NHS under the full scrutiny of health and safety laws that applied to private companies.

Looking back at the history of how the NHS lost it’s immunity in the first place it remains shocking that the Guardian has allowed such a regressive opinion piece to have been published.

So what does this little history lesson tell us as what might happen if Crown Immunity was reintroduced, as Polly Toynbee suggests ?

Firstly, there would be a two tier legal system. Those of us who rely on the NHS for our healthcare would be prevented from claiming compensation if we or our loved ones suffered any kind of injury – even a brain or spinal injury which meant we need 24 hour care for the rest of our lives. On the other hand, those members of society who are fortunate enough to be able to afford private healthcare could bring claims – Crown Immunity cannot apply to a private company.

Secondly, what would the introduction of Crown Immunity do for standards of care in the NHS? I am sure individual doctors and nurses would continue to do their best but the culture change that one would see would be enormous. Standards would inevitably fall dramatically.

The problems Toynbee alludes to will not be solved by a stoical, “man up” attitude. The opportunities for improvements in care quality and efficiency in the NHS are legion. Patients have few avenues to follow to pressure the NHS to improve. Litigation is one of them and should never be removed.

This was a very poor contribution to the debate regarding access to justice for those injured by NHS errors.