COMMENT
Finding fault with the current system A
Ranald Macdonald, legal adviser at NHS Scotland’s Central Legal Office, explains plans to introduce a new compensation scheme to the health sector.
n independent panel of experts ap- pointed by the Scottish Government
in 2009 to consider a system of ‘no-fault’ compensation for the NHS in Scotland, has published its report; ‘No-Fault Compensation’.
The panel of experts has proposed that the current adversarial court system is changed to enable compensation to be paid under a no-fault system for injuries arising from treatment or failure to treat in the NHS in Scotland. No-fault systems are already in place in countries such as Sweden, New Zealand, Finland, Denmark, Norway and parts of the United States.
There are ten recommendations:
• That consideration be given to the establishment of a no-fault scheme for medical injury, along the lines of the Swedish model, bearing in mind that no- fault schemes work best in tandem with adequate social welfare provision;
• That eligibility for compensation should not be based on the ‘avoidability’ test as used in Sweden, but rather on a clear description of which injuries are not eligible for compensation;
• That the no-fault scheme should cover all medical treatment injuries that occur in Scotland (injuries can be caused, for example, by the treatment itself or by a failure to treat, as well as by faulty equipment, in which case there will be third party liability);
• That the scheme should extend to all 22 | national health executive Mar/Apr 11
registered healthcare professionals in Scotland, and not simply to those employed by NHS Scotland;
• That any compensation awarded should be based on need rather than on a tariff based system;
• That claimants who fail under the no- fault scheme should retain the right to litigate, based on an improved litigation system;
• That a claimant who fails in litigation should have a residual right to claim under the no-fault scheme;
• That should a claimant be successful under the no-fault scheme, any financial award made should be deducted from any award subsequently made as a result of litigation;
• That appeal from the adjudication of the no-fault scheme should be available to a court of law on a point of law or fact.
• That consideration should be given to the panel’s analysis of the problems in the current system, so that those who decide to litigate can benefit from them.
Patients would still be required to demonstrate that harm was caused by treatment or the lack of it, but would remove the need to prove negligence. It is suggested that such a scheme could have several benefits for patients and the NHS: fair, faster and reasonable compensation for harm suffered; quicker rehabilitation, avoiding the delay in awaiting the outcome
of court proceedings; broader eligibility criteria than is currently available; greater scope for the NHS to learn from mistakes, thus improving care; more efficient use of public time and money; and a wider access to compensation, with the removal of the need to pay legal fees.
The group has recommended that any Scottish model should be based on the Swedish scheme that has been established for medical accidents, where the patient remains entitled to bring a delict/tort claim. In Sweden, the eligibility criteria are structured around the notion of ‘avoidability’; patients are eligible to receive compensation if they have suffered injury that could have been avoided.
This scheme also uses the ‘experienced specialist rule’, under which consideration is given to the risks and benefits of treatment options other than the one adopted and a retrospective approach has been taken in some cases in the evaluation of whether the injury was avoidable. The Swedish legislation also places an obligation on both public and private healthcare providers to hold ‘patient insurance’ to provide for compensation. Healthcare is funded by regional income tax and each of the 21 regions mutually owns and operates a medical injury insurance company.
Ranald Macdonald
FOR MORE INFORMATION DL: 0131 275 7862 E:
ranald.macdonald@
nhs.net W:
www.show.scot.nhs.uk/clo
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