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No blame, but still a claim?

The Health and Social Care Committee, chaired by Jeremy Hunt, published its NHS Litigation Reform report earlier this year, recommending a no-fault compensation scheme for medical negligence be introduced in England.

No-fault compensation schemes are used in some countries, including New Zealand and Sweden. Their key feature is that there is no requirement to prove there has been negligence in patient care before compensation is paid for an injury. Causation still needs to be established, but demonstrating individual fault is not necessary.

Introducing such a scheme was contemplated in Scotland a few years ago. An expert group, including Balfour+Manson’s Ann Logan, reviewed the issue in 2009. In 2011, it recommended adopting a “no-blame” redress scheme, based on the Swedish model. The group proposed to allow for compensation for avoidable harm arising from medical treatment up to a value of £100,000, but not to allow for compensation where the treatment was received from “independent contractors”, such as GPs, dentists, opticians, pharmacists and private hospitals.

The proposed redress scheme was consulted on in 2016, with responses from organisations such as Action against Medical Accidents and the Medical Defence Union. The Scottish Government’s stated intention was to bring primary legislation to introduce the scheme before the Scottish Parliament in early 2017, with a projected start date of 2018-19. However, almost nothing has been said on the topic since the 2016 public consultation, and it would appear any plans for a no-fault scheme may have been abandoned.

One argument the Health and Social Care Committee (HSCC) makes in support of a no-fault scheme to England is that it would be cheaper to administer than the current system. The reality is that a no-fault scheme is very likely to become unaffordable long term. The Association of Personal Injury Lawyers has calculated the proposed scheme would be up to 13 times higher than the current cost.

Indeed, concern about long-term costs was one key objection made by respondents in Scotland during the consultation. This was later validated by a study by the Medical and Dental Defence Union Scotland (MDDUS), referenced in the Government’s 2014 Consultation Report. The MDDUS relied on a series of assumptions (including the potential increase in claims if a no-fault scheme was introduced) and found that if a no-fault scheme had been operating between 2004 and 2009 in Scotland, expenditure would have risen by between 37 per cent and 110 per cent.

It would appear one way the HSCC aims to mitigate the costs of the scheme in England is by limiting the type of care an eligible injured person is entitled to receive. The proposal is that injured patients should no longer have the right to claim the full costs of private care, just the costs of “topping up care” over and above that which could be provided by the NHS.

I must be critical of this proposal. NHS patients who have suffered medical negligence should not be expected to accept further treatment from the same provider which has already let them down. Nor should such patients be expected to rely heavily on an overstretched system.A final important point is that if a no-fault compensation scheme is introduced in England, the option will still be open for patients to litigate if they prefer. This is different from New Zealand, where the only available route is the no-fault scheme. Denying patients in England the right to litigate would trigger challenges based on the European Convention of Human Rights.

In calling for change, the HSCC report stated: “The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning.”

An alternative sounds appealing, but whether or not such a system would really help in the long run is questionable, and some suggest fundamental change is doubtful.It is noteworthy that the proposal in Scotland appears to have amounted to nothing (so far). One must question whether such a scheme might encourage pursuers who may not otherwise consider pursuing a case, to make a claim. Whilst this might be a positive thing, from the point of view of justice, it won’t help with the high costs of compensation for such claims. All we can do is watch this space.

This article subsequently appeared in The Scotsman on Monday 26 September.

Authors: Carolyn McPhee

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