No-Fault Compensation for injury resulting from medical treatment:Consultation Questions

1. The research team supporti ng the review reported (Farrell et ai, 201019) thatprevious research suggests that when an error has occurred, patients expect doctorsto make a meaningful apology, provide an explanation and take steps to prevent theerror from recurring. The findings of their research would appear to support thecontention that for many, if not most, patients this is the primary aim, rather than afinancial award.

2. The Scottish Public Services Ombudsman (SPSO) has published advice inrelation to apology2o. This advice was referenced in the guidance issued toNHSScotiand in March 2012 on the handling and learning from feedback, comments,concerns and complaints.

Question 1: What, if any, steps do you feel are necessary or appropriate toensure that when an error has occurred, patients receive a meaningfulapology?

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3. The Review Group considered that the following were essential criteria for acompensation scheme for injuries resulting from medical treatment:

/ •• The scheme provides an appropriate level of compensation to the patient,their family or carers

/ e The scheme is compatible with the European Convention on HumanRights

/'./ 8 The scheme is easy to access and use, without unnecessary barriers, forexamp Ie created by cost or the difficulty of getti ng advice or support

.; • People are able to get the relevant specialist advice in using the scheme;vI! • Decisions about compensation are timelyvof •• People who have used the scheme feel that they have been treated

equitably/ e The scheme is affordable

v' • The scheme makes proportionate use of time and resources./ 8 The scheme has an appropriate balance between costs of administration

(e.g. fina ncial or time) a nd the level of compensation awardedj 8 Decisions about compensation are made through a robust and

independent processJ • The scheme has an independent appeal systemv e The scheme treats staff and patients fairly/equitablyj e A reasonable time limit is set for compensation claims.

Question 2. Do you agree that the principles and criteria set out above areessential in a compensation system?

Yes 13' No [J

2.1 Are there any to which you would attach particu lar priority orimportance? Are there any others you would add?

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4. The Review Group identified a number of issues it believed were relevant to thelikely success of any system and agreed that the following criteria were desirable,and considered and highlighted the importance of the wider issues detailed below:

Desirable• The public in general trusts the scheme to deliver a fair outcome• The scheme does not prevent patients from seeking other forms of non-

financial redress, including through the NHS Complaints system• The scheme encourages transparency in clinical decision-making• The scheme contributes to rehabilitation and recovery.

Question 3: Do you agree that these criteria are desirable in a compensationsystem?

Yes ~ No [J

3.1 Are there any others you think are desirable and should be included?

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Wider issueso The scheme contributes to:

;;.. organisational, local and national learningp. patient safety;;.. quality improvement

• Lessons learned can be used to influence organisational risk managementin the future

e The scheme encourages and supports safe disclosure of adverse events• The scheme does not put barriers in place for referral to regulators of any

cases which raise grounds for concern about professional misconduct orfitness to practise.

Question 4: Do you have views or ideas on how a compensation schemecould more effectively contribute to the wider issues identified above?

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5. When considered the Review Group's suggested essential principles and criteriaagainst other schemes and the Swedish model came out on top. Based on this theReview Group offered:

Recommendation 1 - that consideration be given to the establishment of ano-fault scheme for medical injury, along the lines of the Swedish model,bearing in mind that no-fault schemes work best in tandem with adequatesocial welfare provision.

Question 5: Based on the background information on the system in operationin Sweden given in Annex A would you support the approach suggested inRecommendation 1?

Yes ifIf not, why not and what alternative system would you suggest?

No

Recommendation 2 - that eligibility for compensation should not be based onthe 'avoidability' test as used in Sweden, but rather on a clear description ofwhich injuries are not eligible for compensation under the no-fault scheme.

Question 6: Would you support the approach in Recommendation 2? Thiswould mean for example that where treatment carries a known risk and thepatient has given consent to that treatment it would not be eligible.

Yes [J No u(

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If yes, what other injuries would you consider should not be eligible?

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6. The Review Group was of the view that any recommended changes to a no-faultsystem should cover all healthcare professionals including those not directlyemployed by the National Health Service. The group believed that fairness dictatedthat all patients whether treated by the NHS or privately should have access to animproved system if possible. If this proved impossible, the group nonethelessbelieved that there were benefits that could be obtai ned by a move to no-fault forNHS patients. The group's preference was that all patients should be covered by theno-fault scheme and offered:

Recommendation 3 - that the no-fault scheme should cover all medicaltreatment 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, inwhich case there may be third party liability)

~ Recommendation 4 - that the scheme should extend to all registered~ healthcare professionals in Scotland, and not simply to those employed by

NHSScotiand.

(As explained in the Cabinet Secretary's foreword we acknowledge that further workis needed to help in our understanding of the volume, level and cost of compensationclaims handled by the Medical Defence Unions and private healthcare providers. Wewill seek to explore this further with the relevant stakeholders during the consultationperiod.)

Question 7: Do you support the view that, if introduced, a no-fault schemeshould cover all clinical treatment injuries (e.g. private healthcare andindependent contractors) and all registered healthcare professionals and notjust those directly employed by NHSScotiand?

Yes 0 No ~

If not, why not?

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Question 8: The intention is that if introduced the no-fault system will not beretrospective. However, consideration will need to be given to when and howwe could transfer to a new system and how outstanding claims could behandled iflwhen a no-fault system was introduced. What are your views onhow outstanding claims might be handled?

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7. The Review Group did not favour the use of a tariff system for compensation, asitfelt that this would not address individual needs and it was unlikely that peoplewould buy into a system where compensation was based on a tariff. The grouptherefore offe red:

Recommendation 5 - that any compensation awarded should be based onneed rather than on a tariff based system;

Question 9: Do you support the approach in Recommendation 5?

Yes [J No [J

9.1 What are your views on the assumption that the level of payments will besimilar to those settled under the current system?

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8. The Review Group was satisfied that a no-fault scheme established as theydescribe would be fully compatible with the requirements of the EuropeanConvention of Human Rights, based in particular on the need - as in Sweden andNew Zealand - to build in appropriate appeals mechanisms, with an ultimate right toappeal to the courts on a point of fact or law. In addition, retention of the right tolitigate will ensure that those for whom the no-fault system is felt to be inappropriatewill still be able to raise claims using this route. The group recommended:

Recommendation 6 - that claimants who fail under the no-fault schemeshould retain the right to litigate, based on an improved litigation system

Recommendation 7 - that a claimant who fails in litigation should have aresidual right to claim under the no-fault scheme

Recommendation 8 - that, should a claimant be successful under the no-faultscheme, any financial award made should be deducted from any awardsubsequently made as a result of litigation

Recommendation 9 - that appeal from the adjudication of the no-faultscheme should be available to a court of law on a point of law or fact.

Question 10: Do you support recommendations 6 - 9 as proposed by theReview Group?

If no, why not?

Ves ur No [J

10.1 Do you have any concerns that the Review Group's recommendationsmay not be fully compatible with the European Convention of Human Rights?

If yes, what are your concerns?

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Ves [J No ti'

9. The Review Group offered suggestions for improvement to the existing systemand these are reproduced in Annex B. The group recommended:

Recommendation 10 -that consideration should be given to our analysis ofthe problems in the current system, so thatthose who decide to litigate canbenefit from them.

10. It is proposed that the suggested improvements will be taken forward as part ofthe forthcoming consultation on the Courts Reform Bill later this year by the ScottishGovernment Justice Directorate. In particular the Scottish Civil Courts Review21

recommended that pre-action protocols should be made compulsory and it isconsidered that this would assist in resolving many of the areas identified by theReview Group In addition, Sheriff Principle Taylor's Review of Expenses andFunding of Civil Litigation in Scotland 22, which is due to report at the end the year willconsider a range of issues.

Question 11: Do you agree with the Review Group's suggestions forimprovements to the existing system?

Yes rsY No D

11.1 Do you have any comments on the proposed action in relation to thesesuggestions?

21 http://www.scotcourts.cov.uk!ci\oilcourtsre\oiew!22 http://scotland.cov.uk!About/tavlor-review

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11. The Review Group also considered whether or not the establishment of a schemespecific to neurologically impaired infants should be created (in the event that ageneral no-fault scheme is not introduced). Members considered that this group ofpatients arguably represents a special case and certainly accounts for the mostsignificant sums awarded in compensation and legal costs. The Group were of theview that this was worthy of consideration.

Question 12: Would you support the establishment of a scheme specific toneurologically impaired infants if a general no-fault scheme is not introduced?

Yes m/ No D

12.1 What are your views on the Review Group's suggestion that the futurecare component of any compensation in such cases could be provided in theform of a guarantee of delivery of services (both medical and social care) tomeet the needs of the child, instead of by way of a monetary sum?

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General Comments

We would welcome any further general comments you may wish to offer here.

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We are grateful for your response. Thank you.

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