The prospect of no-fault compensation being introduced for clinical accidents suffered in Scotland moved a step closer this week when the Scottish government launched a consultation on a blueprint to reform the NHS claims system.
The proposals were put forward by a government-commissioned independent expert panel, the No-Fault Compensation Review Group, headed by law and medical ethics expert Professor Sheila McLean, last year.
The proposed new system would still require proof that harm was caused by treatment but would remove the need to prove negligence. Any compensation awarded would be based on need rather than on a tariff-based system. If a general no-fault scheme is ultimately rejected, the consultation asks whether there should be one just for neurologically damaged infants.
The group recommended that the system be based on that in Sweden, where the Swedish Patient Insurance Association, a public company, administers the scheme which is financially supported through contributions made by county councils which are responsible for the provision of health care. Under the Patient Injury Act 1996 there is an obligation on both public and private health care providers to obtain insurance that covers claims being made in respect of medical injuries.
There would still be a right to litigate if a claim has been rejected by the scheme under what is proposed to be a reformed system of litigation, which will be informed by Sheriff Principal Taylor’s current review of expenses and funding of civil litigation in Scotland
The minister for public health, Michael Matheson, said: “We know that the vast majority of the care delivered in our NHS is of the highest quality, but it is important that people who have suffered as a result of clinical mistakes should have some form of redress.
“It's in no-one's best interests to have that redress delayed because a compensation claim can take years to go through the courts and nor is it in anyone's interests to have precious NHS resources spent on expensive legal fees.
“That is why we are considering the introduction of a no-fault compensation system. It is important that we seek wider views in order to help in our understanding of what the practical implications would be and to ensure that those affected receive appropriate redress without the need to go through a lengthy court process.”
No-fault has been considered south of border several times, most recently in 2009 when the health select committee called on the government to investigate it. While this was rejected, the Department of Health said it maintained an interest in the issue and would be watching the outcome of Scotland’s investigation. However, the situation in Scotland is different than that in England and Wales, with no conditional fee agreements, low legal aid rates and just six specialist claimant clinical negligence solicitors.