Clinical Negligence: A proposal for a no fault compensation scheme in Scotland

Doctor looking at notes

Friday 17th August saw a report A Study of Medical Negligence Claiming in Scotland published on behalf of the Scottish Government about the feasibility of introducing a no fault compensation scheme for those with complaints and legal claims against the NHS.  Digby Brown Solicitors, Head of Clinical Negligence Sue Grant, commented on first reading of the report:

The specialist clinical negligence department at Digby Brown welcomes the Scottish Governments Study of Medical Negligence Claiming in Scotland. The report highlights many of the deficiencies of the current system. It makes clear that the current NHS complaints procedure often fails to meet the expectations of patients seeking explanations and apologies.

Worryingly, the Report states that NHS staff directly involved in the complaints procedure are the strongest critics of it. The Report also identifies the significant obstacles that patients in Scotland face if seeking compensation. Careers and homes can be lost while the protracted procedure grinds on. There is no incentive for Health Boards to seek early resolution of claims. The Report makes it abundantly clear that reform in one form or another is needed. 

Unfortunately, what is missing at this stage is any clear indication of how a No Fault Scheme will operate in practice. Who will be eligible and how will that eligibility be assessed? 

It seems clear that causation will still require to be proved - in simple terms, that the “fault” caused an adverse outcome. How will that be defined? Will the scheme compensate a cancer sufferer with a delayed diagnosis even if that made no difference to his survival?  Will all babies with brain injury from birth be entitled to full compensation or will there be a maximum award?  It is difficult to see how there can be any realistic assessment of the cost of a NFS until much more detail is provided. 

The number of medical negligence claims in Scotland is disproportionately small when compared with the rest of the United Kingdom.  One of the reasons for this, as the Report suggests, is that solicitors “screen out” or mediate many low value or unmeritorious claims.  It remains to be seen to what extent such cases will swell the case load of a NFS with consequent administrative burden and cost.

As the Report highlights, the number of specialist medical negligence solicitors in Scotland is small but their impact is significant. The conclusions of the Report, that those represented by specialist solicitors obtain higher awards for their clients, are supported by research. The complexities of medical negligence cases are not going to disappear with a NFS. We look forward to being involved in the consultation process with a view to improving the lot of victims of medical negligence in Scotland.

If you would to download a copy of the report it can be found on the Scottish Government website at http://www.scotland.gov.uk/Publications/2012/08/4456