Avoiding fault in compensation does no-one full justice

Published on Monday 27 July 2009 19:05

THE Scottish Government has set up a task force of experts to examine a possible change in the way patients could obtain compensation from the NHS.

Medical negligence claims currently require the victim's solicitor to prove that the problem was caused by the NHS or its staff, that they had a legal responsibility to prevent the problem occurring, and that there was clinical negligence.

A "no-fault" style of approach is being suggested, which would mean that while the injuries would still need to be shown to be related to the treatment, the patient would not have to establish any responsibility or blame.

This proposed system of claiming would mean that time delays for patients making compensation claims might be significantly reduced.

A no-fault system would also allow patients who have contracted hospital acquired infections such as MRSA or C diff to make claims more easily without having to show that the hospital was in breach of its duties.

However, I believe this model of compensation has significant drawbacks that more than outweigh the perceived benefits.

I was on the expert group for Hepatitis C cases that came up with a no-fault payment scheme through the Skipton Fund. Unfortunately, the government failed to give the level of awards we recommended, leading to undercompensation.

This group also looked into claims for compensation in general against hospitals.

I think no-fault compensation at first looks superficially attractive, but it poses the question: where does one draw the line?

Does it mean that all persons whose treatment does not turn out the way it was meant to will be entitled to compensation? If not, who would be entitled?

No-fault compensation can also mean undercompensation, especially for those who are seriously injured or for relatives of loved ones who have died.

This is what happened to the Skipton Fund. There have also been considerable problems in New Zealand which has a no-fault compensation scheme.

There are also very low payments in, for example, similar schemes such as Criminal Injury Compensation or Pneumonicosis Etc. (Workers Compensation) Act 1979.

We must also be wary of insurers who may see this as an opportunity to canvass a cheap alternative for their own benefit, such as can be seen in the Republic of Ireland.

There are two other important factors which should be taken into account: the cost of administering a no-fault compensation scheme; and the fact that the proposal would create a justice deficit, in removing those responsible for negligent acts from the proceedings.

Since these proposals are at such an early stage it would be very difficult to put an accurate estimate on the costs of a no-fault compensation scheme for the NHS, but there is no doubt they would be significant.

Such a scheme would need considerable resources, particularly since it would have to take account of the need to deliver reviews, and deal with appeals. Presumably there would also be the associated costs of a quango or Czar to oversee its activities.

I believe the current system delivers a strong element of basic justice in that those who have been negligent in treating patients by doing something they should not have done, or failing to do something they should have, are held directly responsible, even if the payment of the actual compensation may be through an insurance or professional indemnity scheme.

Those treating us, like anyone else, should know that they should not act negligently.

It will be interesting to see how such issues are tackled by the Scottish Government's new task force.

I would urge them to concentrate on establishing a more effective and efficient way of ensuring victims of medical negligence receive appropriate levels of compensation rather than going for the quick-fix no-fault approach that will undoubtedly leave victims and their families significantly undercompensated.

&#149 Frank Maguire is a senior partner with Thompsons Solicitors.

&#149 The expert report on the issue is expected to be submitted to the Scottish Government in 2010. You can find the official announcement of the task force at: www.scotland.gov.uk/News/Releases/2009/06/01104609