No-fault medical compensation plans ‘needs work’

Plans for a no-fault scheme require more work, according to the Scottish Government. Picture: TSPL
Plans for a no-fault scheme require more work, according to the Scottish Government. Picture: TSPL
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MORE work is needed on a no-fault compensation scheme for Scottish patients harmed by medical treatment after concerns were raised about its potential high costs, according to the Scottish Government.

In 2011 a review group recommended a no-fault scheme, where patients would not have to prove negligence, be introduced in Scotland.

But following a consultation, concerns have been raised about the potential costs and the complexities of the system, leading the Scottish Government to say it will now be carrying out further work before such a scheme can be introduced.

The No-fault Compensation Review Group, chaired by Professor Sheila McLean from Glasgow University, was established in 2009 to consider the potential benefits of a no-fault scheme in Scotland.

In February 2011 it recommended that consideration should be given to establishing a no-fault scheme for clinical injury, alone the lines of the “no blame” system that operates in Sweden.

The group suggested any scheme should cover all clinical injuries occurring in Scotland, including those involving private providers and independent contractors such as GPs.

A consultation in response to the group’s report received 51 responses by the end of 2012, the majority from organisations such as medical bodies and patient groups.

Almost half (49 per cent) supported the recommendation to consider a scheme of no-fault compensation along the Swedish model.

But there were concerns about the long-term costs and whether a scheme in Scotland would be cost-effective.

Claim worries

Some raised fears that there could be an increase in the number of claims and potential costs in a no-fault system.

In its response, the British Medical Association (BMA) Scotland said: “Given the estimated level of adverse incidents within the healthcare system and the number of complaints relating to clinical treatment, a comprehensive no-fault scheme where payment was automatically available for injury resulting from treatment or missed diagnosis, would open up the potential for tens of thousands of claims per year.”

The Faculty of Advocates said most claims were currently settled extra-judicially at a discount from their full value, but it anticipated that this would no longer be achieved.

Respondents also questioned the estimates given for increases in payments under a no-fault scheme, provided by a Manchester University study.

Further work by the Scottish Government, with help from the Medical and Dental Defence Union Scotland (MDDUS), suggested the cost of dealing with claims over failures in treatment could rise by more than 100 per cent if a scheme which covered private and independent contractors as well as NHS employees was adopted.

The report said that had a no-fault scheme been operating between 2004 and 2009, expenditure would have risen by between 37 per cent and 110 per cent.

It concluded: “Given the complexity of the issues and the potential costs we will proceed with caution to explore the scope, shape and development of a no-fault compensation in Scotland for injuries resulting from clinical treatment and the subsequent introduction of such a scheme.

“This will involve further detailed work especially in relation to projected cost and eligibility criteria.”


In a written answer to the Scottish Parliament, Health Secretary Alex Neil said the work would also consider “how such a scheme could more effectively contribute to patient safety, learning and improvement”.

A Scottish Government spokeswoman said: “Given the complexities and the need to ensure that the introduction of a fairer system is not at the expense of other essential NHS services, ministers will look to scope and establish a scheme for the NHS staff in the first instance – but which can be extended if and when that’s considered appropriate.”

A BMA spokeswoman said: “The BMA in Scotland continues to support the principle of the introduction of a no fault compensation scheme that improves the current adversarial system and works to benefit all parties involved.

“However, at a time of financial constraint, it is vital that any new scheme not increase costs to the NHS and divert money away from patient care.”

Prof McLean said: “Everyone involved in preparing the report will be pleased that the government has accepted the importance of the principles that we proposed should underpin the compensation system.

“There is no doubt that moving from the current system to a no-fault scheme would indeed be very complex and I welcome the government’s commitment to exploring this further, and look forward to hearing the outcome in due course.”