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					No Fault Compensation Review Group

   Report and Recommendations

             Volume I




                  Commissioned by
                  The Scottish Government
                  St Andrews House
                  Regent Road
                  Edinburgh
                  EH1 3DG
Foreword

We were asked by the Cabinet Secretary for Health and Wellbeing to consider
the potential benefits for patients in Scotland of a no fault compensation
scheme for injuries resulting from medical treatment, and whether such a
scheme should be introduced alongside the existing clinical negligence
arrangements.

Our report sets out the approach we adopted together with our findings,
conclusions and recommendations which we hope will be helpful and inform
consideration of what is required to ensure that the compensation scheme in
operation in Scotland meets the needs of those involved.

This is an extremely complex area and there are, of course, a wide number of
interests at stake. The Review Group has been fortunate to have
representation from many of these interested parties in its membership and I
have been impressed with the commitment and enthusiasm that members
have shown throughout our deliberations and I am extremely grateful for this
support. We adopted a strategy which proactively utilised the unique
expertise of members to inform both our discussions and the development of
our recommendations. We were also fortunate to be able to consult other
experts as and when this was appropriate and I am also happy to
acknowledge this assistance which was immensely helpful to us.

The original report was submitted in November but did not include costings for
the introduction of a no-fault scheme. The research team has now provided
advice, and the report offers comments on this in Chapter 7 paragraph 7.14.

Finally, my sincere gratitude to the secretariat as a whole, and Sandra
Falconer in particular, should be recorded. Their professionalism and support
were outstanding, and Sandra was immensely helpful in putting together the
final report.




Professor Sheila A.M. McLean, LLB. MLitt, PhD, LLD, LLD, FRSE, FRCGP,
F Med Sci, FSB, FRCP(Edin), FRSA
International Bar Association Professor of Law and Ethics in Medicine

Chair

15 February 2011




                                      2
Content                                                                 Page


Summary of Conclusions and Recommendations                                   5

Chapter 1                                                                    9
 Introduction and background
 Remit
 Approach

Chapter 2                                                                12
 Evaluation of the current compensation system
 Evaluation of the system and proposals in England
 Evaluation of the proposals in Wales
 Evaluation of existing No Fault/No Blame systems in the UK

Chapter 3                                                                    25
 Evaluation of existing No Fault systems in other jurisdictions

Chapter 4                                                            36
 Analysis of principles
 No Fault liability and the European Convention of Human Rights (ECHR)

Chapter 5                                                                    42
 Options considered

Chapter 6                                                                    50
 Additional considerations

Chapter 7                                                                    55
 Conclusions and recommendations

Appendices                                                                   59
Appendix A   Review Group membership
Appendix B   A Limited No Fault Scheme
Appendix C   List of evidence considered
Appendix D   Definitions



Research Reports published separately:
Volume II - No Fault Compensation Schemes for Medical Injury: A Review
Volume III - An empirical study of medical negligence claiming in Scotland




                                      3
For further information please contact:

Sandra Falconer
Scottish Government Health Directorates
Patient Support and Participation Division
Ground East Rear
St Andrews House
Edinburgh
EH1 3DG
Tel: 0131 244 2399
E-Mail: sandra.falconer@scotland.gsi.gov.uk
Fax: 0131 244 2989




Acknowledgements

We are extremely grateful for the assistance provided during the course of our
work by:

Professor Jim Murdoch, Professor of Public Law, Glasgow University

Staff at the British High Commission, New Zealand

Professor Ron Paterson, formerly Health and Disability Rights Commissioner,
New Zealand

Accident Compensation Corporation, New Zealand:
      Dr Jan White      ACC Chief Executive,
      Dr Kevin Morris   Director Clinical Services
      Mike Playle       Policy Manager, Strategic Policy & Research
      Fiona Colman      Senior Policy Analyst, Strategic Policy &
                        Research
      Joy Baird         Business Manager, Board & Corporate Support

Professor Emeritus Henry Johansson, Medical Expert of the Patient Claims
Panel
Carl Espersson, Secretary of the Patient Claims Panel, Sweden
Kaj Essinger, Senior Advisor, Swedish Medical Injury Insurance




                                          4
Summary of Conclusions and Recommendations

1. At the outset we sought to identify what we, as a group, considered a
compensation system should seek to achieve. We agreed that this was not
just about financial compensation; rather the objective should be to restore
the person who had been harmed to the position they had been in prior to the
injury, as far as this is possible. This is the expressed aim of the current
system, and non-financial support can presently be made available to assist in
achieving this aim. However, the present system relies to a large extent on
the provision of financial support by way of an award of damages, which alone
is unlikely to meet the needs of injured people. Rather, needs may extend to
non-financial assistance such, for example, as rehabilitation, the provision of
aids and appliances, as well as some investment in the restoration of trust
and rebuilding of the relationship with healthcare professionals so that a
patient feels confident in going back to the same practitioner or institution.

2. Our research team reported (Farrell et al, 2010) that previous research
suggests that when an error has occurred, patients expect doctors to make a
meaningful apology, provide an explanation and take steps to prevent the
error from recurring. The findings of their research would appear to support
the contention that for many, if not most, patients this is the primary aim,
rather than a financial award.

3. The existing approach is that “the NHS does not pay compensation when
it has no legal liability for the harm suffered by the patient”. In order to obtain
compensation for harm arising out of medical treatment, whether provided by
NHSScotland or others such as independent contractors, patients currently
need to show that there was “damage wrongfully caused”.

4.    We take a no fault system to mean one in which there is no need to
establish that any individual was negligent; the focus is rather on the link
between the (in)activity and the harm resulting from it. We explored several
well-established no fault schemes in other jurisdictions with a particular focus
on the New Zealand and Swedish models. Although these two schemes differ
in extent, funding basis and process, each has as its goals the facilitation of
access to justice, the provision of adequate compensation for injured patients
and the appropriate adjudication of claims – goals which the review group
believes should also inform the system of compensation in Scotland. In
addition, these no fault schemes seem to encourage a focus on non-financial
support, such as rehabilitation.

5. We tested the existing system, the existing system with some suggested
improvements, the New Zealand and the Swedish system against the
principles and criteria we developed and agreed were essential in a
compensation system. The Swedish model came out at the top of the list,
meeting more of the criteria than any of the others.




                                         5
6.   As a group we considered that the following were essential criteria for a
compensation scheme:

         The scheme provides an appropriate level of compensation to the
          patient, their family or carers;
         The scheme is compatible with the European Convention on
          Human Rights;
         The scheme is easy to access and use, without unnecessary
          barriers, for example created by cost or the difficulty of getting
          advice or support;
         People are able to get the relevant specialist advice in using the
          scheme;
         Decisions about compensation are timely;
         People who have used the scheme feel that they have been treated
          equitably;
         The scheme is affordable;
         The scheme makes proportionate use of time and resources;
         The scheme has an appropriate balance between costs of
          administration (e.g. financial or time) and the level of compensation
          awarded;
         Decisions about compensation are made through a robust and
          independent process;
         The scheme has an independent appeal system.
         The scheme treats staff and patients fairly/equitably.
         A reasonable time limit is set for compensation claims

7. Given that the Swedish model satisfied more of the principles developed
by the group than any other system, including the existing one, we offer the
following recommendations for consideration:

      Recommendation 1.

      We recommend 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;

      Recommendation 2.

      We recommend 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 under the no fault scheme;




                                      6
Recommendation 3.

We recommend 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 may be third party
liability);

Recommendation 4.

We recommend that the scheme should extend to all registered
healthcare professionals in Scotland, and not simply to those
employed by NHSScotland;

Recommendation 5.

We recommend that any compensation awarded should be based
on need rather than on a tariff based system;

Recommendation 6.

We recommend that claimants who fail under the no fault scheme
should retain the right to litigate, based on an improved litigation
system;

Recommendation 7.

We recommend that a claimant who fails in litigation should have
a residual right to claim under the no fault scheme;

Recommendation 8

We recommend 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;

Recommendation 9.

We recommend 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.

Recommendation 10

We recommend that consideration should be given to our
analysis of the problems in the current system, so that those
who decide to litigate can benefit from them.




                               7
8. The potential benefits of a no fault approach would be that:

         More people would obtain compensation, because of the removal of
          the requirement to prove fault;
         Compensation could be awarded much more quickly, because:
             a) There is no need to prove fault;
             b) Care needs could be met by a guarantee of ongoing care
             provision by the state;
             c) The award could be made by administrative means or
             tribunal, rather than following an adversarial process;
             d) Money currently leaving the NHS would be retained in the
             system, thus improving NHS resources overall;
             e) There may be a considerable saving in legal fees.
         A no fault scheme also has the potential to integrate issues such as
          rehabilitation with financial compensation.

9. A number of issues came to light in the course of our discussions that the
review group believes are relevant to the likely success of any system agreed
upon. Criteria that we considered desirable were also agreed upon, as was
the importance of some wider issues:

     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.

      Wider issues
       The scheme contributes to:
          organisational, local and national learning;
          patient safety;
          quality improvement.
       Lessons learned can be used to influence organisational risk
         management in the future;
       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 or fitness to practise.

10. We offer some thoughts on these matters in chapter 6 in the hope that
they may be of some interest and assistance.

11. We also considered whether or not the establishment of a limited no
fault scheme specific to neurologically impaired infants should be created in
the event that a general no-fault scheme is not introduced. This is presented
in Appendix B.



                                      8
Chapter 1

Introduction and background

1.1 In its consultation on the possible content of a Patients‟ Rights Bill
(conducted between 22 September 2008 and 16 January 2009) the Scottish
Government acknowledged that it was possible that there may be instances
where financial compensation should be paid without the need to go through
the legal process. The consultation paper expressed the Scottish
Government‟s view that:

       a no fault compensation scheme could be simpler than existing
        processes, and could support the development of the concept of a
        mutual NHS as well as a positive feedback and learning culture; and
       that no fault compensation was the favoured way forward for the NHS
        in Scotland.

1.2 The consultation paper also:

       acknowledged the need for further work on the practical implications
        and potential costs of any such change in compensation arrangements;
        and
       made it clear that the Scottish Government would explore the potential
        benefits for patients in Scotland of a no fault compensation scheme
        before taking any firm decision on future arrangements.

1.3 To progress this work Nicola Sturgeon, Deputy First Minister and Cabinet
Secretary for Health and Wellbeing, announced on 1 June 2009 that she was
establishing the No fault Compensation Review Group, to be chaired by
Professor Sheila McLean of Glasgow University. We held our first meeting
on 14 August 2009 and our last meeting on 7 October 2010. Meeting papers
and the Minutes of the Group meetings are available on the Scottish
Government website at: http://www.scotland.gov.uk/Topics/Health/NHS-
Scotland/No faultCompensation. A list of the Group members is included at
Appendix A.

Remit

1.4 We were asked by the Cabinet Secretary for Health and Wellbeing to
consider the potential benefits for patients in Scotland of a no fault
compensation scheme for injuries resulting from medical treatment, and
whether such a scheme should be introduced alongside the existing clinical
negligence arrangements, taking account of:

       The cost implications;
       The consequences for healthcare staff, and the quality and safety of
        care;
       The wider implications for the system of justice and personal injury
        liability; and



                                       9
      The evidence on how no fault compensation has operated in other
       countries.

1.5 We were tasked to give full, frank and objective consideration of no fault
compensation for medical injury and to submit our report and
recommendations on the key principles and design criteria that could be
adopted for a no fault compensation scheme in October 2010.

1.6 A research team, led by Professor Frank Stephen, University of
Manchester, was appointed in November 2009 to support our work by:

      Reviewing and providing an up-to-date analysis of existing no fault
       schemes in other countries;
      Identifying the financial and other implications of introducing such a
       scheme within NHSScotland;
      Gathering information and stakeholder views from organisations
       representing healthcare staff and NHS service users as well as from
       individual NHS service users who have used the current system.

The complete research findings are included in Volume II of this report.
However, evidence from the report has been incorporated (and is referenced)
as appropriate within the relevant chapters of the report to support our
conclusions.

Approach adopted

1.7 We were specifically asked to consider whether or not there would be
benefits in changing the current fault-based system to one based on no fault
for medical injuries. Although this limited the scope of our considerations to
the legal system itself, throughout the course of our deliberations it became
clear that other issues were also important, such as what patients actually
want (for example, a meaningful apology, an explanation for what happened),
questions about patient safety, the need for a system that is capable of
learning from mistakes and professional disciplinary issues.

1.8 Although we have confined our recommendations to the terms of the
remit, we do make some general comments in chapter 6 concerning
associated matters that appear to be integral to the likely impact and/or
benefits of the recommendations we have made and how they might be
implemented. We consider that this might also provide the impetus for
further non-legal developments to improve the wider situation for patients and
healthcare professionals, and for the NHS as a whole. We also agreed that
any recommended changes should cover all healthcare professionals
including those not directly employed by the National Health Service.
Uniformity in the evaluation of liability, we believe, would benefit all parties.
We accept, as a number of members of the group have pointed out, however,
that there may be difficulties in including independent contractors (such as
GPs and GDPs) and private practice in any no fault scheme for a number of
reasons, including their existing indemnity arrangements and the need to
consider historical liabilities. However, the group believes that fairness


                                       10
dictates that all patients should have access to an improved system if
possible. If this proves impossible, we nonetheless believe that there are
benefits that could be obtained by a move to no fault for NHS patients. Our
preference, however, remains that all patients should be covered by the no
fault scheme.

1.9 We agreed that, for completeness, it was also important that we
consider possible improvements to the current system as well as what
benefits might arise from a move to no fault liability.

1.10 There are, of course, a number of interests at stake – for example,
patients, NHS Boards, healthcare professionals, healthcare providers,
equipment suppliers, regulatory bodies, Royal Colleges, medical defence
associations and the legal profession. The Review Group has been fortunate
to have representation from all of these interested parties in its membership.
This encouraged us to adopt a strategy which proactively utilised the unique
expertise of members to inform both our discussions and the development of
our recommendations, by commissioning discrete and concise papers from
specific members. We also consulted other experts as and when this was
appropriate. We acknowledge their respective contributions within the report.

1.11 We considered a wide range of oral and written evidence in preparing
this report. A full list of the evidence considered is at Appendix C. Some
broad definitions for certain words or phrases referred to in this Report are
given in Appendix D.

1.12 We initially identified four potential options (a – d) for consideration and
as our work progressed we added another (e):

   a. the establishment of a no fault system to run alongside the existing
      system;
   b. the establishment of a stand-alone no fault system and abandonment
      of the existing system;
   c. retention of the existing system in its present form;
   d. the recommendation that the current system be modified and improved
      upon; and
   e. the establishment of a no fault system to run alongside an improved
      existing system.

1.13 We developed a set of principles upon which we believe a
compensation system should be based. Discussion of these principles can
be found in chapter 4.




                                       11
Chapter 2

Evaluation of the current compensation system

2.1 The existing approach is that “the NHS does not pay compensation
when it has no legal liability for the harm suffered by the patient”. In order to
obtain compensation for harm arising out of medical treatment provided by
NHSScotland, patients currently need to show that there was “damage
wrongfully caused”. The test for establishing negligence requires the pursuer
to establish three elements. There must be loss, injury or damage; a breach
of a duty of care, and this breach must have caused the harm complained of
(causation). A loss, injury or damage is compensable in law only if the injured
person can show that another person was at fault. Fault, like loss, is a
technical concept and is more than simply making a mistake. The mistake
must be a culpable, or blameable, mistake before it will be characterised as
amounting to fault for legal purposes.

2.2 Whether a claim is lodged against an NHS healthcare provider, or an
independent contractor, it is not enough for a pursuer to show that he or she
has suffered a legally recognised injury, that the defender had a duty of care
towards the pursuer, and that the defender fell below the standard of
reasonable care – that is, that the duty of care was breached. Negligence
alone does not entitle a pursuer to damages in compensation for harm or loss.
In addition to negligence (breach of a duty of care), the pursuer must show a
direct causal connection between the breach of duty (the fault) and the injury
suffered (the damage or harm). There is, therefore, no entitlement to
compensation unless causation can be established.

2.3 The „legal test‟ for fault that is applied in cases of medical negligence is
the 1955 „Hunter v Hanley‟ test which requires the pursuer to establish that:

      There is a usual and normal practice;
      The doctor has not adopted that practice; and
      The course adopted is one which no professional person of ordinary
       skill in that field would have taken if acting with ordinary care.

2.4 In simplistic terms, a mere “mistake” will not mean that a doctor is at
fault. A doctor will only be deemed negligent if he or she has failed to meet
the minimum acceptable practice. Failure to meet best or optimal practice is
not enough to establish fault. What amounts to acceptable (i.e. non negligent)
practice will depend heavily on the evidence of expert (medical) witnesses.

2.5 This is a stricter test than that applied in cases of non-professional
negligence (which is based more firmly on “reasonableness”) and it is
therefore more difficult for a patient to show that a health care professional
has fallen below the appropriate standard of care than it would be for
someone suing for personal injury in a non-professional context. This,
together with the increased practical difficulties in establishing causation in
health care situations, means that establishing liability is particularly
problematic in medical negligence cases.


                                        12
2.6     There are, in addition, further problems associated with the current
system. For example, the amount of funding provided by the Legal Aid
Scheme is considered by some not adequate to reflect the amount of work
involved in investigating the circumstances of a case. Reimbursement rates
for work done are considered to be poor, with the result that many
practitioners are now refusing to undertake Legal Aid work in this field. This is
a significant access to justice issue and a matter of concern raised by a
number of members of the group. Equally, the general requirement that one
expert should be instructed at a time when initial investigation is under way
can cause significant delay.

2.7 For many patients, the ability to seek compensation depends on the
availability of Legal Aid or Legal Advice and Assistance (LAA). Information
was sought from the Scottish Legal Aid Board in relation to applications and
this shows that 710 applications for LAA to investigate whether or not
evidence exists to support a claim were made in 2008-09. There were 862
applications for an increase in authorised expenditure of which some would
relate to LAA applications made in previous years and of these 770 were
granted for the full amount and 33 for a lesser amount. During the same
period 65 of the LAA applications resulted in a claim upon the fund.

2.8 In England, all civil legal aid providers must sign a Unified Contract
(Civil) with the Legal Services Commission. This regulates how Civil Legal
Aid work is funded by the Community Legal Services (CLS) to ensure the
provision of experienced practitioners who will provide competent, quality
assured best value. In Scotland there are no rules mandating that Legal Aid
is only available to specialist practitioners (at least in the field of reparation).
This increases the likelihood of cases being taken on by inexperienced
practitioners. The effect is that claims which should not be run are run, and
good claims are often under-settled or not properly investigated. This situation
can also promote delay. Rules in England and Wales in relation to specialist
practitioners have been shown to be beneficial

2.9 Concern about the availability of legal representation, and particularly,
suitably qualified legal representation is reflected in the empirical research
findings reported by the research team:

   “The pursuers‟ solicitors explained that one of the largest barriers facing
   people who potentially have been the victim of clinical negligence is finding
   a solicitor prepared to take on their case. They explained that the main
   reason for a client being turned away was limited sources of funding, and
   that there was also a lack of solicitors‟ prepared and able to take on
   clinical negligence work in Scotland. This problem was reflected in the
   pursuer interviews, and several pursuers described difficulties in finding a
   solicitor to take on their case.”

The problems associated with non-specialist legal representation for patients
were also addressed in the research. Overall the statistical analysis
conducted by the researchers suggests that:


                                        13
   “….a settlement is more likely if the claimant is represented by a
   „specialist‟ medical negligence firm of solicitors. It is also the case that
   these specialist firms are likely to be associated with high value cases.
   However it should be noted that our statistical analysis cannot distinguish
   between cause and effect here. It may be that a claimant is more likely to
   choose a specialist firm if the claim is potentially of high value but it could
   also be that specialist firms are only willing to take on claims with high
   potential „value‟.”

2.10 Further problems identified with the current scheme (which are not
necessarily specific to medical injury) include the following:

      Length of time – many claims can take months, if not years, between
       initial investigation and final resolution by way of Judgement or
       settlement.
      Adversarial culture which can lead to:
            o Delay in disclosure of expert opinions or information – parties
                frequently do not „show their hand‟ until the parties are well
                advanced into the adversarial process;
            o Delay in focussing the issues – crucial issues in dispute
                frequently do not become focussed until late into the dispute
                when the facts may be clarified;
            o Uncertainty of outcome – Again, parties sometimes have no
                idea as to the likely outcome until the adversarial process is well
                advanced;
            o Perception of lack of openness – a perception by many
                claimants that there has been a lack of openness by clinicians or
                those representing clinicians;
      Disproportionality of legal expenses – the legal expenses of
       investigating and pursuing the claim can be can be disproportionate to
       the value of the claim.

2.11 At our meeting in January 2010 we heard from Colin McKay, Deputy
Director, Legal System Division, SG Justice Directorate, about Lord Gill‟s
recent report on the Civil Courts Review (CCR).

2.12 Colin explained that the CCR principles included fairness of procedures
and practices, secure justice, accessibility, encouragement of early resolution
and effective and efficient use of resources. Lord Gill made a series of
recommendations for improvements in civil court processes including
recommendations for structural reform and proposals for specialised judges
and a third tier of court with a new kind of judge. The report also proposed a
new personal injury court and the development of a protocol for clinical
negligence based on the use of „Chapter 43‟ fast track type procedure for
personal injury cases in the Sheriff Courts.

2.13 At the time of writing this report, Lord Gill‟s report was still under
consideration by the Scottish Government. The CCR would not affect the
law of negligence but aimed to make litigation more accessible, affordable,


                                        14
efficient and fair. It is unlikely, however, that all the issues identified in this
report would be satisfactorily resolved even if the Gill report were
implemented in full.

2.14     Payment of compensation under the current scheme can result from
an out-of-court settlement or successful litigation. The National Health Service
will fund awards on claims made against directly employed staff of NHS
Health Boards only. Clinical negligence claims against Independent Family
Health Service providers, e.g. most GPs, dentists, opticians, pharmacists and
private healthcare practitioners, are handled by defence organisations. A
number of these organisations were represented on the group.

2.15 NHS Boards currently indemnify directly employed staff, funding all
settlements of clinical negligence claims against them and also receive
additional protection from more substantial losses by participation in the
Clinical Negligence and Other Risks Indemnity Scheme (CNORIS), a risk-
sharing scheme launched on 1 April 2000, with membership mandatory for all
NHSScotland healthcare bodies. The Scheme‟s aim is to provide financial
efficiency through cost-effective risk pooling and claims management. The
Central Legal Office (CLO) defends claims on behalf of the NHS Boards.
Costs and data associated with the scheme are shown below.

2.16 The data obtained from the Central Legal Office reveal that claims rose
during the 1990s, but that there has been a declining trend since 1999. This
is illustrated in Figure 1.

Figure 1: Number of claims received since 1992
                                                   Number of Claims Received

 700



 600



 500



 400



 300



 200



 100



  0
       1992   1993   1994   1995   1996   1997   1998   1999   2000   2001   2002     2003      2004   2005   2006   2007   2008   2009
                                                           Year Claim Received

                                                         Claims Received            Trendline




2.17     One matter of concern for patients (and no doubt for healthcare
professionals) is the length of time taken to resolve individual cases. This is


                                                               15
influenced by a variety of issues including the need to consider the evidence
of experts who may have differing views, as well as the difficulties of gaining
access to legal aid and the funding of claims that we have already referred to.

2.18 Under the current system the level of compensation is decided by the
court based on individual circumstances, allowing compensation to be tailored
to need.

Claim Costs

2.19 Data supplied by CLO allowed the research team to examine the amount
paid out as awards on settled claims and also to examine the costs in terms of
CLO chargeable costs and the outlays in achieving those settlements.

2.20 Figure 2 shows the awards and costs of claims closed for each year from
1998 to 2009. It should be noted that the sums of money plotted in this figure
do not necessarily correspond to actual CLO expenditure in these years. The
year refers to the year the claim was closed by CLO.

                 Figure 2: Total Awards and Costs of Closed Claims
                               Expenditure by Year Claim Closed: 1989 - 2009

 £35,000,000



 £30,000,000



 £25,000,000



 £20,000,000



 £15,000,000



 £10,000,000



  £5,000,000



         £0
               1998   1999   2000    2001     2002       2003      2004       2005     2006     2007   2008   2009

                                                       Year Case Closed

                                     Total Awards    CLO Expenses & Outlays   Adverse Outlays




2.21 It is clear from the figure that total awards and costs have risen more or
less steadily over this period in absolute terms. The sums quoted, however,
are in current prices and have not been adjusted for inflation. Figure 3 shows
the total of awards and the number of settled claims. Although the value of
awards has risen by more than five fold over the period, the number of settled
claims in 2009 was only slightly above those at the beginning of the period.
This suggests that the average sum awarded has risen significantly over the
period, even after inflation has been taken into account.




                                                       16
                         Figure 3: Total Awards and Number of Settled Claims
                                                        Settled Claims 1998 - 2009
                                                              Number and Total Awards

                £30,000,000                                                                                                             300


                £25,000,000                                                                                                             250




                                                                                                                                               Number of Settled Claims
                £20,000,000                                                                                                             200
 Total Awards




                £15,000,000                                                                                                             150


                £10,000,000                                                                                                             100


                 £5,000,000                                                                                                             50


                         £0                                                                                                             0
                               1998    1999     2000     2001     2002     2003    2004       2005     2006    2007       2008   2009
                                                                         Year Claim Closed

                                                                  Total Awards       Claims Settled


 2.22 Earlier in this report we saw that the trajectories of claims below £20,000
are somewhat different from those above that sum. Figure 4 shows the
average award and average costs associated with settled claims where the
total award was less than £20,000.

Figure 4: Average Award, Costs and Expenditure for Settled Claims with
                        Award below £20,000
                                 Average Award, Costs and Expenses for Settled Claims < £20,000:
                                                          1998 - 2009

 £20,000.00

 £18,000.00

 £16,000.00

 £14,000.00

 £12,000.00

 £10,000.00

     £8,000.00

     £6,000.00

     £4,000.00

     £2,000.00

                £0.00
                        1998    1999     2000          2001      2002      2003     2004        2005        2006         2007    2008   2009

                                                                         Year Claim Closed

                                                Av Sm Total Award         Av CLO Cost Sm Aw          Av Sm Adv Outlays


2.23 The average award in these settled claims has fluctuated over the period
and at the end of the period was slightly higher than at the beginning.


                                                                         17
However, the cost to NHS Health Boards in adverse fees, CLO chargeable
costs, and outlays has risen quite significantly as have the sums paid out in
adverse costs. Indeed the latter two items taken together are on average
higher than the award. This is illustrated in Figure 5. In recent years costs
have been much greater than the awards made for these low value awards.

Figure 5: Average Costs as a Percentage of Average Award for Awards
below £20,000
                                         All Costs as Percentage of Average Award:
                                       Claims with Award < £20,000, Closed 1998-2009

 250%




 200%




 150%




 100%




  50%




   0%
              1998     1999     2000      2001      2002       2003       2004         2005    2006    2007   2008   2009

                                                             Ratio of Costs to Award




                              Figure 6: CLO Costs of Unsettled Claims
                                                   Costs of Unsettled Claims
                                                   Closed Cases 1998 - 2009
 £1,400,000



 £1,200,000



 £1,000,000



  £800,000



  £600,000



  £400,000



  £200,000



        £0
                1998     1999     2000      2001      2002       2003       2004        2005    2006   2007   2008   2009

                                                              Year Claim Closed
                                                              Costs of Unsettled Claims




                                                               18
2.24 In addition to the costs of settled claims, CLO incurs costs and outlays in
claims that are not settled. On some occasions, NHS Health Boards will
make a payment to the claimant for fees incurred by the claimant even where
the claim is not settled. The total of the costs for unsettled or repudiated
claims is shown in Figure 6. These costs have risen over the years from
around £300,000 to over £1M. This analysis is unable to estimate the costs to
pursuers of unsettled claims where NHS Health Boards do not make a
contribution.

2.25 This brief survey of costs indicates clearly that significant costs are
incurred for unsettled claims and that the costs associated with small claims
have been rising and currently can be greater than the awards made.

2.26 In order to inform our deliberations, we considered proposals for reform
of the tort system in both England and Wales.

Evaluation of proposals in England

2.27 In England, reform of the existing clinical negligence litigation system
and its replacement with a no fault scheme was initially considered as long
ago as the 1970s, although it was not recommended that such a scheme be
established at the time (Pearson 1978). Throughout the 1980s and into the
mid 1990s, however, it continued to be the subject of debate and analysis in
the relevant academic and policy literature in the UK (Ham et al. 1988; Jones
1990; Brazier 1993; Fenn 1993; McLean 1993; Oliphant 1996).

2.28 The impetus for the most recent episode of clinical negligence reform in
England had its origins in the publication of two reports that were highly
critical of the current clinical negligence litigation system. (NAO 2001, Fenn et
al. 2000; 2004). Against a background of a dramatic increase in the number of
claims being made, the resolution of claims was seen as taking too long and,
in many cases, legal costs were considered excessive. One report, (Learning
from Bristol 2001: 442) recommended that the current system be abolished
and replaced by an „alternative administrative system‟ which did not foster a
„culture of blame‟.

2.29 In 2003, the Chief Medical Officer (CMO) for England published his
recommendations on clinical negligence reform in the report: Making Amends
(CMO 2003). The CMO considered the option of establishing a
comprehensive no fault compensation scheme in England. This option was
ultimately rejected, primarily on cost grounds. For example, data produced by
Professor Michael Jones in his discussion paper on No-Fault Compensation,
which was considered in 2003 by the Expert Group on Financial and Other
Support chaired by Lord Ross, estimated the cost of introducing a no fault
compensation scheme for England and Wales as being between £973.5
million and £1.25 billion. Concern was also expressed as to the need to
comply with Article 6 of the European Convention on Human Rights (CMO
2003: 110-13).




                                       19
2.30 Recommendations were, however, made for the establishment of an
NHS redress scheme which would include care and compensation in the case
of birth-related neurological injury (inspired and adapted from the schemes
operating in Virginia and Florida) and a redress package (including financial
compensation) for low value claims (CMO 2003: 119-21).

2.31 The Government subsequently agreed the introduction of a redress
scheme for low value claims (£20,000 or less) the parameters of which were
set out in the NHS Redress Act 2006. Despite calls for the adoption of
alternative tests for eligibility, the Government preferred to retain established
tort law principles as the basis for determining eligibility. It did not adopt the
CMO‟s recommendation regarding the establishment of a no fault scheme for
birth-related neurological injury.

2.32 The proposed NHS redress scheme has been subject to criticism on a
number of grounds. It has been argued that, if implemented, it is unlikely to
bring about greater access to justice for injured patients; it lacks sufficient
independence from the NHS in terms of investigating what went wrong; and it
fails to provide for accountability on the part of healthcare professionals. In the
circumstances, it is unlikely to address issues of longstanding concern to
injured patients such as poor communication, inadequate explanation and
patient‟s feeling ignored (Vincent et al.1994), and would therefore be unlikely
to inspire patient confidence in the scheme (Farrell and Devaney 2007: 647-
48). On the other hand, while the proposed scheme has been criticised for its
lack of independence and for retaining the same qualifying criteria as is used
in the Courts (a liability in tort), it is generally accepted as having the potential
to provide speedier access to justice for many more injured patients, reducing
unnecessary legal costs, and supporting organisational learning for patient
safety. While there are no definite plans at present to implement an NHS
Redress Scheme in England, a Welsh version of the scheme is to be
launched this year (see paragraphs 2.37 to 2.41 below).

2.33 In the wake of Lord Woolf‟s report (1996), as well as centralisation of
the defence of claims under the NHS Litigation Authority (NHSLA), the current
clinical negligence litigation system in England has undergone significant
reform in the last ten years. The time taken to process claims is much
reduced, with those claims under the largest scheme (CNST) taking on
average 1.56 years to resolve. Only 4% of claims go to court, including
settlements requiring court approval. The number of claims made on an
annual basis has been largely static, although there was a small increase in
the past year (2009). 41% of claims do not proceed beyond the notification/
investigation stages. Overall legal costs are considered high, with
Claimant‟s legal costs a particular source of concern (NHSLA 2009: 10-14).

2.34 Payments made by NHSLA in respect of negligence claims against the
NHS in England in the financial years 2004-05 amounted to £528m, rising to
£827m in 2009-10.




                                         20
2.35 In September 2009 the House of Commons Select Committee
published their report on Patient Safety. This is available at
http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhealth/151/1
5102.htm Section 4 on „Harmed patients and their families or carers‟ (from
paras 57 – 98) is of particular relevance. This recommends:

       “If anything, the Government should be considering more radical
       measures in this direction, rather than shying away from the limited
       changes for which it has already legislated. We urge consideration of a
       scheme like that in New Zealand, where litigation over clinical
       negligence has been entirely replaced by a statutory right to
       compensation for “treatment injury” from an independent fund, without
       the need to prove negligence as required under tort law. (Paragraph
       98)”

2.36 The UK Government's response, which was published in October 2009,
is available at
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPo
licyAndGuidance/DH_106898 and states:

       “No fault” compensation was considered as part of the Making Amends
       (2003) consultation and more recently during the passage of the NHS
       Redress Act 2006. The Department rejected the introduction of a “no
       fault” scheme for a number of reasons, including: overall costs are
       expected to be higher than the current tort system because more
       claims would fall within the scheme; there is no clear definition of “no
       fault”, and we would argue that none of the schemes we examined are
       genuinely “no fault”; a high minimum level of injury or hospitalisation
       that a patient has to meet to qualify may be necessary to make a
       scheme cost-effective; there is still a need to establish causation,
       leading to arguments about “fault” being replaced by ones about
       “cause”; explanations and apologies are not necessarily provided in a
       system which focuses on financial recompense alone; a “no fault”
       scheme, in itself, does not improve accountability or ensure learning
       from adverse events. Ministers in Scotland have already announced
       that they are going to consider the benefits to patients of introducing a
       “no fault” compensation scheme in Scotland. We maintain an interest in
       the review and, rather than duplicating, we will await its outcome in
       order to inform further thinking.

Evaluation of proposals in Wales

2.37 The Review Group also considered the Welsh Assembly consultation
document on the “Putting Things Right” initiative, which sought views on the
draft regulations for a Welsh Redress Scheme under which the qualifying
criterion is a “qualifying liability” (an assessment by the NHS body that there
would be a qualifying liability in tort for personal injury). The Welsh measure
is an administrative alternative to litigation which does not require the claimant
to prove fault or liability, and so could be considered to fall within a wide
definition of no fault compensation.


                                       21
2.38 The key characteristics of the Welsh Redress scheme, which
essentially adopted the same approach as the English NHS Redress Act
2006, are that:

         It is restricted to NHS services (including those provided by
          independent providers on behalf of the NHS);
         The scheme would not initially extend to Primary Care Services;
         There should be a limit on the size of „claims‟ dealt with to those
          assessed as likely to be less than £20,000 (this was subsequently
          increased to £40,000) or less for pain, suffering and loss. Actual
          financial losses (special damages) will be calculated on top of this.
         Consideration should be given to the combination of different
          investigation roles, risk management, complaints and claims into a
          “joined-up” process strongly linked to learning lessons and
          improving safety;
         A redress „package‟ should be available that can include remedial
          treatment as well as financial compensation: apology, explanation
          and a report on patient safety actions resulting from the incident;
         Specialist advice and support and legal representation should be
          available to empower patients/families in the process; and
         Claimants would only give up their right to litigate if they accept a
          settlement offer.

2.39 The Welsh Assembly indicated in its consultation report, which was
issued on 2 August 2010, that a number of amendments had been made to
reflect comments received during the consultation. Changes provide clarity
in relation to, amongst other matters:

         time limits for raising a concern;
         timescales for investigation;
         the operation of the arrangements in primary care;
         how the arrangements will work if a primary care concern is raised
          with a Local Health Board (LHB);
         suspension of the limitation period. In other words, if the
          organisation believes it may have been legally at fault and proceeds
          to investigate this further, then the date of the decision must be
          noted formally. This will then suspend the “Limitation Period” while
          the investigation carries on (this is the time available to a person to
          take legal action in the courts, usually 3 years; longer in the case of
          children).

2.40 Before finally laying the Regulations, the Welsh Assembly issued the
draft Regulations for a further short, technical consultation from 6 to 30
September 2010. This was specifically intended to cover:

         how the redress arrangements would operate in cross-border
          situations and with independent providers in Wales; and
         a proposed overall global financial limit for damages.


                                      22
2.41 While most members of the working group supported the main
principles behind the scheme, in as much as they were designed to introduce
a better way of handling concerns, they had reservations about the
implications of a different approach in relation to cases under £40,000 and the
proposal that it be run by the NHS rather than by an independent body.

Evaluation of existing no fault systems in the UK

2.42 There have been no fault schemes in operation in the United Kingdom
since the passing of the Workmen's Compensation Act 1897. We consider
the provisions of some of these schemes below.

      (i)   The Criminal Injuries Compensation Authority administers the
      Criminal Injuries Compensation Scheme 2008 which operates
      throughout England, Scotland and Wales. Northern Ireland has its own
      Scheme, as do many other countries.

      The CICA pays compensation to people who have been innocent
      victims of a violent crime or those injured trying to apprehend criminals
      or prevent a crime. Since 1 April 1996, the level of compensation has
      been determined according to a scale, or tariff, set by Parliament.
      Under the current (2008) scheme the minimum tariff payment is £1,000
      and the maximum tariff payment for a single injury is £250,000. In
      certain circumstances, additional payments may be made for loss of
      earnings and special expenses. The Authority decides the amount of
      money claimants are entitled to by looking at all the available
      information on their financial circumstances before and since the event
      in question. The maximum overall award is £500,000.

      The scheme reflects the basic elements of common law claims for
      personal injury and wrongful death, but the size of awards paid in
      recognition of victims‟ injuries is fixed according to a tariff and does not
      always reflect the needs of the individual.

      (ii) The Vaccine Damage Payments Act 1979, which came into force
      on 22 March 1979, introduced a scheme of payments for those
      severely disabled as a result of vaccination. The list of „qualifying‟
      vaccines has been added to from time to time, most recently by the
      Vaccine Damage Payments (Specified Diseases) Order 2009
      (SI2516/2009) which adds vaccines against the H1N1 influenza virus.
      When the Secretary of State is satisfied that a person has been
      severely disabled and that, on the balance of probabilities, this is as a
      result of vaccination against any of the diseases specified in the Act
      and associated regulations, a tax-free one-off lump sum is payable
      (currently £120,000). This payment will affect certain means-related
      benefits such as job-seekers allowance, housing benefit and council
      tax benefit. The policy justification for the scheme was that the
      community as a whole owes a special duty towards “vaccine-damaged
      children”, because the community as a whole benefits from wide-


                                       23
       spread vaccination and the Government has a clear interest in
       encouraging parents to have their children vaccinated. Severe disability
       is assessed as being disability of 60% or more.

       The payment is designed to ease the present and future burdens of
       those suffering from vaccine damage and their families. A payment
       under the scheme does not prejudice the right of the disabled person to
       pursue a claim for damages through the courts, although the amount of
       any award made by the scheme will be deducted from any
       compensation achieved following litigation.

       There are clear, and tight, limitations on eligibility, both factual and
       judgmental and very few claims are successful. Between April 2000
       and June 2006, 1164 claims were received but only 21 were
       successful. Most claims are rejected either because the claimant
       cannot prove causation, i.e. that the severe disability was suffered “as
       a result of the vaccination”, or because the claimant cannot show that
       their disability meets the level of being “severe”.

       (iii) The Armed Forces Compensation Scheme provides compensation
       for those who are injured or made ill as a result of service in the armed
       forces. It provides a lump sum, on a 15-point sliding scale depending
       on the seriousness of the injury and, for the most serious injuries, a
       Guaranteed Income Payment for those who suffer a loss of earning
       capacity. It is a no fault scheme that does not remove the right to sue
       the MoD for negligence, although again any compensation awarded
       under the scheme will be taken into account in any negligence award.

       (iv) The Diffuse Mesothelioma Scheme, established on 1 October
       2008, provides a lump-sum payment, of varying levels depending upon
       the claimant‟s age (from £8,197 to £52,772), to individuals who suffer
       from the asbestos-related disease, Diffuse Mesothelioma, who are
       unable to claim compensation in any other way (for example no
       worker‟s compensation is available because the disease was not
       contracted at work, or no negligence claim is possible because there
       was no negligence).

Conclusion

2.43 The concept of no fault is not, therefore, entirely foreign in UK law, and
the examples above are but a few of the schemes that currently operate on a
no fault basis. However, its availability is currently reserved for relatively
narrow purposes. The majority of personal injury claims relating to treatment
injury will still require to be raised using the current medical negligence
framework. As we have seen, there are a number of difficulties arising from
this – the legal difficulties in meeting the Hunter v Hanley test, the availability
of adequate legal aid, access to specialised legal representatives, overall
costs (particularly legal costs) and delay in reaching a conclusion. These
problems contributed to the development of no fault schemes in other
jurisdictions, some of which are considered in the following chapter.


                                        24
Chapter 3

Evaluation of no fault compensation schemes in operation in other
jurisdictions

3.1 Before evaluating specific systems, it is important to explain what no fault
liability actually amounts to. As we have seen in chapter 2, at present in
Scotland, compensation for medical injuries depends on proving both
negligence and causation. On the other hand, a no-fault approach would
mean that it was necessary only to prove that the injuries were caused by
medical treatment, but not to establish blame or individual responsibility.

3.2 The research team‟s literature review and interim report (Farrell et al,
2010) reviews and analyses existing no fault schemes in New Zealand (NZ),
Nordic countries (Sweden, Finland, Denmark, Norway), and the schemes
operating in Virginia and Florida (United States) for birth-related neurological
injury. The review drew mainly on published and grey literature, as well as
academic discussions and debate over the past ten years. (See Volume II of
this report)

3.3 Following review, the research report identifies the common elements of
no fault schemes; namely:

          All have eligibility and threshold disability criteria which need to be
           satisfied before cover is accepted;
          There are limitations on the extent to which cover is provided: for
           example, there may be caps on certain categories of compensation
           and compensation for non-pecuniary losses (such as pain and
           suffering) may not be available;
          Levels of financial compensation/entitlements tend to be lower than
           awards under the delict/tort based systems;
          There is simpler and broader „access to justice‟ in no-fault schemes,
           particularly in relation to the cost of initiating or submitting claims,
           as well as time to resolution;
          Access to the courts may be restricted;
          There is a comprehensive national social welfare/social insurance
           system in place.

3.4 The research team‟s literature review also identified specific advantages
and disadvantages that are said to arise from no fault schemes, which are
reproduced below:

Advantages

          A principled social/community response to personal injury which
           includes a recognition of community responsibility; comprehensive
           entitlement; full rehabilitation; fair and adequate compensation; and
           administrative efficiency;
          Expanded eligibility criteria for cover that facilitate greater access to
           justice for patients who suffer medical injury than would be the case


                                        25
         in relation to clinical negligence claims brought under delict/tort-
         based systems;
        Greater scope to collect data on, as well as learn from, medical
         error with a view to enhancing patient safety;
        Greater access to justice for patients who have suffered medical
         injury, which includes providing a clearer „road map‟ towards
         obtaining suitable redress;
        Promotion of better, as well as less defensive, relationships
         between patients and health practitioners when medical injury has
         occurred;
        Greater efficiency in terms of both time and costs than would be the
         case in relation to the management of clinical negligence claims
         brought under delict/ tort-based systems;
        Rehabilitation can proceed in a more timely fashion, without having
         to wait until legal action in the courts is resolved;
        Easing of pressure on health practitioners with regard to escalating
         insurance premiums, the availability of liability and the threat of
         litigation;
        These schemes work well when combined with well-established
         and well-funded national social security systems and independent
         patient complaints processes;
        Reduction or elimination of the need to take legal action in the
         courts for medical injury, thus lessening the cost and administrative
         burden on the courts and interested parties, as well as reducing
         distress and tension between injured patients (pursuers) and health
         practitioners/health institutions (defenders).

Disadvantages

        Potential lack of affordability, particularly in the context of large
         national populations;
        Financial compensation/entitlements in the existing schemes are
         set lower than would be the case in successful clinical negligence
         claims brought under delict/tort-based systems;
        Loss of focus on the need to promote institutional and professional
         accountability in relation to (preventable/avoidable) medical injury;
        The removal of the threat of litigation which is sometimes said to
         provide an incentive for health practitioners and health institutions
         to avoid unsafe practices in relation to medical treatment provided
         to patients;
        A significant increase in the potential number of claims arising out
         of medical injury, which in turn could promote the development of a
         compensation culture;
        The schemes only work well in terms of providing adequate
         financial compensation/entitlements for medical injury in the context
         of a well-funded national social security system;
        There is a lack of empirical evidence that institutional and
         professional learning from medical error is enhanced by no-fault
         schemes;


                                     26
         There is still a requirement to prove causation in no-fault schemes
          (thresholds may vary). This is often the most difficult aspect to
          establish in clinical negligence claims brought under delict/tort-
          based systems. Difficulties in establishing causation may therefore
          act to prevent greater access to justice under no-fault schemes;
         Although eligibility criteria may be seem more expansive under no-
          fault schemes, allowing for a greater number of injured patients to
          obtain cover, existing schemes have a significant rate of rejection
          as a result of failure to satisfy eligibility criteria;
         No-fault schemes which provide for payments based on set
          amounts or fixed tariffs are not sufficiently responsive to the
          individual needs of injured patients;
         No-fault schemes do not automatically guarantee that key elements
          of redress desired by injured patients, such as explanations,
          apologies and accountability of health professionals, are provided;
         Restriction of access to the courts in no-fault schemes may
          potentially infringe human rights law (depending on the jurisdiction),
          and     may also         encourage         injured      patients to seek
          redress/accountability in other ways (e.g., through the criminal law).

3.5 It should be noted that these advantages and disadvantages reflect the
literature in this area and are not necessarily definitive of how the systems
actually work in practice.

Analysis of Specific No Fault Schemes

3.6 We were particularly interested in, and sought to collect and consider
further evidence on, the no fault schemes operating in New Zealand
(population of 4.3 million people) and Sweden (population of 9.2 million
people). These schemes are very different. The New Zealand Scheme
provides compensation for personal injury resulting from any type of accident
– road, domestic, work, medical, etc. A person who has an entitlement under
the scheme is barred from raising a tort action. The system in Sweden is
confined to medical injury and includes recourse to the courts.

The New Zealand Scheme

3.7 The New Zealand Scheme, which is the world‟s most comprehensive,
was initiated as the direct result of the report of a Royal Commission
(Woodhouse Report 1967) which recommended the establishment of a no-
fault compensation scheme for personal injury based on the following
principles: community responsibility, comprehensive entitlement, complete
rehabilitation, real compensation, and administrative efficiency (Royal
Commission 1967, para. 4; McKenzie 2003). The Accident Compensation Act
1972 (NZ) was subsequently passed, and the scheme came into effect in
1974. The scheme, which has subsequently been amended on a number of
occasions, was based on a clear policy-based agenda which broadly argued
that since society generates the risks to which people are exposed in their
daily lives, it was right that society should provide compensation when harm



                                       27
occurs. This scheme provides statutory entitlements for all persons who
suffer „personal injury by accident '.

3.8 In terms of medical injury, reform to the eligibility criteria in 2005 resulted
in the replacement of the earlier requirement to establish „medical
misadventure‟ with the term „treatment injury‟. This reform removed the fault-
based element which had effectively been retained within the medical
misadventure criterion. The 2005 reforms also promoted an enhanced focus
on systems learning from medical error and the creation of a reporting
scheme that was to be driven by concerns over patient safety rather than
assigning blame to individual health practitioners (McLay et al. 2004; Oliphant
2007).

3.9 As a result of the reforms which came into effect on 1 July 2005, a person
has cover under the scheme for personal injury as follows:

          Treatment injury suffered by the person
          Treatment injury in the circumstances described in section 32(7)
          Injury suffered as a consequence of treatment given to the person
           for another personal injury for which the person has cover
          Injury caused by a gradual process, disease or infection that is
           treatment injury suffered by the person
          A cardio-vascular or cerebro-vascular episode that is treatment
           injury suffered by the person (see s. 20(2) IPRCA 2001).

3.10 Treatment injury is defined under s. 32 IPRCA 2001 as a personal injury
that is suffered by a person: seeking treatment from one or more registered
health professionals; or receiving treatment from, or at the direction of, one or
more registered health professionals; is caused by treatment; and is not a
necessary part, or ordinary consequence, of the treatment, taking into
account all the circumstances of the treatment, including the person's
underlying health condition at the time of the treatment; and the clinical
knowledge at the time of the treatment.

3.11 All adverse medical events, preventable and unpreventable, are
potentially included. There is no requirement that the injury has to be suffered
as the treatment is given or during the treatment process. (Manning 2006:
698-9). Cover can also extend to personal injury suffered by a person as a
result of treatment given as part of a clinical trial in certain circumstances,
including where the claimant did not agree in writing to participate in the trial.
If a person suffers an infection that is a treatment injury, then cover extends to
third parties who catch the infection from the patient or from the patient‟s
spouse/partner.

3.12 “Treatment” includes the giving of treatment; diagnosis of a medical
condition; a decision to treat or not to treat; a failure to treat or treat in a timely
manner; obtaining or failing to obtain informed consent to treatment; the
provision of prophylaxis; application of any support systems including policies,
processes, practices and administrative systems which are used by the
treatment provider and directly support the treatment. It also includes failure of


                                          28
equipment, devices or tools which are used as part of the treatment process,
whether at the time of treatment or subsequently. Failure of implants and
prostheses are included, except where the injury is caused by general wear
and tear.

3.13 The Accident Compensation Corporation (ACC) is responsible for
administering the scheme. Once a claim has been lodged, the ACC will
investigate it, determine whether or not the claimant is covered and, if so,
what entitlements the claimant should receive. The ACC has two months to
investigate the claim and inform the claimant of its decision. Treatment injury
applications are managed by the Treatment Injury Centre (TIC). If cover is
accepted then the case is referred on for assessment of entitlements (if
appropriate). If the claim is high-cost or high-risk, such as one involving birth-
related neurological injury, then if cover is accepted, it is referred to the ACC‟s
National Serious Injury Centre which has expertise in dealing with such
claims. The TIC has a set of internal controls as to when cover decisions are
made on such claims. For straightforward claims, it is 14 days; moderate
claims - 70 days; complex claims - 145 days. As a result of the treatment
injury provisions, the TIC now receives a significant number of straightforward
and moderate claims. If a decision cannot be made within the specified
legislative time limits (e.g., up to 9 months) due to insufficient information,
cover is declined, although investigations may continue. A fresh decision can
be made once all relevant information is received. Between 1 July 2005 and
30 September 2009, 16,709 claims were accepted as treatment injury.

3.14 Funding for the scheme comes from a variety of sources including the
following:

        Work account: premiums are paid by all employers; this is to cover
         work related personal injuries.
        Earners‟ account: non-work injuries suffered by individuals in paid
       employment, excluding motor vehicle accidents.
        Self-employed work account: work-related injuries to self-employed
         people and private domestic workers.
        Non-earners‟ account: injuries to people who are not in paid
         employment including students, beneficiaries, retired people and
         children.
        Motor vehicle account: injuries involving motor vehicle accidents on
         public roads.
        Treatment injury account: covers injuries resulting from medical
         treatment.

3.15 The treatment injury account: covers injuries resulting from medical
treatment. The funds in this account are drawn from the Earners‟ Account
and Non-Earners‟ Account. The Earners‟ Account funds are used to meet the
treatment injury costs of claimants who were in paid employment prior to
injury, whereas the Non-Earners‟ Account funds are used to meet the
treatment injury costs of claimants who were not in paid employment prior to
injury. The Non-Earners‟ Account is used to meet the majority of costs. The
Treatment Injury Account is the smallest of the ACC‟s six accounts in terms of


                                        29
levy revenue and claims liability, accounting for 3.5% of ACC‟s total net levy
income and 7.5% of the scheme‟s total claims liability. However, there has
been a significant increase in the number of treatment injury claims in recent
years. In the last financial year, this resulted in the appropriation initially
allocated to the account exceeding budget by NZ$146.1million (161%) (ACC
Annual Report 2009: 47).

3.16 In order to bring about improvements to the scheme, particularly with
regard to its financial situation, the New Zealand government tabled the Injury
Prevention, Rehabilitation, and Compensation Amendment Bill 90-1 (2009),
now the Accident Compensation Amendment Act 2010, which was passed
into law on 3 March 2010. Its primary purpose is to improve flexibility in the
scheme, facilitate cost containment, provide for closer working relationships
between government agencies and the ACC, and improve financial reporting
and accountability.

3.17 We held a video conference with the ACC in January 2010 to allow us
to speak directly to staff and to raise additional questions in relation to the
scheme. This was kindly facilitated by the British High Commission in New
Zealand. The ACC provided the following information in relation to the
numbers and costs of treatment injury claims:

       Numbers and costs

          Since the introduction of 2005 Act, to 30 June 2009, the ACC had
           received 27,174 claims for treatment related injuries;
          The number of claims has increased from approximately 280 lodged on
           average per month in July 2005 (under the earlier medical misadventure
           criterion), to approximately 750 on average per month in July 2009
           (under the current treatment injury criterion);
          The outstanding claims liability in the Treatment Injury Account
           increased from $644 million as at June 2005 to $2.167 billion as at
           30 June 2009;
          Treatment injury costs rose from $43 million in 2005/06 to $98 million
           (£46million) in 2008/09.

These increases in costs and liability have been linked to an increase in the overall
volume of claims, and the rising (and ongoing) costs of social rehabilitation over
the lifetime of claims. This includes the costs of historical medical misadventure
claims as well as the more recent treatment injury claims.




                                       30
Figure 7: New Zealand - Cash costs of treatment injury 2009

Payment type                                          NZ$ (000s)   £ (000)s
Lump sum/independence allowance                           10,262         5,004
Social rehabilitation (personal support, equipment,       39,038        19,034
home/vehicle modifications)
Vocational rehabilitation (assessments, equipment)           904           441
Treatment (medical, hospital, surgical, consultations,    19,766         9,636
dental, counselling, etc)
Weekly compensation non-fatal                             24,054        11,726
Weekly compensation fatal                                  2,932         1,429
Other expenses                                             1,120           546
Total costs 2009                                          98,076        47,816

3.18 If a claim is denied, the ACC is required to provide reasons. If a
claimant disagrees with the ACC decision they can ask for a review. In the
first instance, it is recommended that the claimant approach the ACC
employee dealing with the claim, at which point an internal review can be
conducted. There is also the option of a formal independent review following
the initial decision on a claim by the ACC. The time limit for lodging an appeal
is 3 months from the date upon which the claimant receives the ACC decision.
Aspects of the decision which can be challenged during this independent
review include the following: whether any entitlements should be provided,
and which ones; the level of entitlements; any preliminary decisions that are
necessary for the above decisions to be made; whether an unreasonably long
time has been taken to deal with the claim; whether there has been a breach
under the Code of ACC Claimants‟ Rights; or the claimant is unhappy with the
ACC‟s response to their complaint.

3.19 The ACC uses its independent subsidiary company, Dispute Resolution
Services Ltd, to carry out these reviews. The formal independent review is
conducted by an independent reviewer who was not previously involved in the
claim. A hearing is conducted for which the ACC provides copies of all details
held on the claimant‟s file. The independent reviewer is required to make a
decision within 28 days and that decision is binding, although there is a right
of appeal to the District Court (unless the claim involved a review of an
alleged breach of the Code of ACC Claimants‟ Rights), as well as a further
limited right of appeal, primarily on points of law.

3.20 The ACC pays for the cost of the independent review and the claimant
is responsible for meeting his or her own costs (e.g. retention of a lawyer and
travel and other costs). If the independent reviewer finds that the ACC‟s
decision was wrong in whole or in part, then an order that the ACC contribute
towards the claimant‟s costs (within set limits) will be issued. Even if the


                                      31
reviewer decides that the ACC‟s decision was correct, the reviewer can order
the ACC to contribute towards a claimant‟s costs if they consider that the
claimant acted reasonably in applying for the independent review.

Overview of Nordic Schemes

3.21 The research report shows that Sweden (population of just over 9
million people) took the lead by adopting a voluntary administrative no fault
scheme in 1975. Finland, Denmark and Norway followed in 1987, 1988 and
1992 respectively. Unlike the New Zealand Scheme, these Schemes are
confined to medical injury, and all have similar legal and social goals which
include:

         Establishing a patient‟s right to compensation when they suffer
          harm as a result of medical treatment;
         Easy and broad access to compensation by injured patients;
         Fostering of good relations between health practitioners and
          patients (with health practitioners facilitating 60 – 80% of all claims
          under the schemes);
         The promotion of safety and quality in care by learning from medical
          error and a move away from attributing blame.

3.22 The researchers reported that the available literature evaluating these
Schemes tended to be descriptive rather than analytical, but what was
available suggested that the schemes appeared to have a fair degree of
support and were efficient in terms of cost and time, with similar advantages
and disadvantages. Separate schemes have been established for drug
injuries and recourse to the Courts exists alongside the no fault schemes.

The Swedish System

3.23 The Swedish Scheme is specifically for medical accidents and the
patient remains entitled to bring a delict/tort claim. In 1975 Swedish hospitals
started their own insurance company for medical injuries to avoid local court
proceedings that were difficult for a hospital to handle and to make it easier
for patients to obtain compensation. 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. This scheme was placed on a
statutory footing following the passing of the Patients Injury Act 1996 and,
while many of the provisions draw on the earlier voluntary scheme, the new
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.




                                      32
3.24 Treatment and diagnostic injuries account for approximately 85% of all
claims (Hellbacher et al. 2007; Kachalia et al. 2008). A claim must be filed
within three years from the time that the patient became aware of the injury
and/or within 10 years from the time the injury occurred. The following
categories of injury are eligible for compensation - treatment injury, diagnostic
injury, material-related injury (this will cover injury resulting from a defect in, or
improper use of, medical products or hospital equipment), infection injury,
accident-related injury. It is estimated that just under 50% of claims are
rejected annually under the scheme, on the grounds that they do not satisfy
the eligibility criteria. Compensation payments consist of two general
components – pecuniary and non-pecuniary. Pecuniary damages cover loss
of income and medical expenses incurred as a result of the injury, but not
covered by other insurance. Non-pecuniary damages compensate for pain
and suffering, disability and disfigurement, and inconvenience.

3.25 Under the Patient Torts Act 1996, a claimant is entitled to bring tort-
based claims arising out of medical injury in the courts. Health care providers
are required to carry liability insurance to cover such claims. The claimant
must show with reasonable certainty that the health care provider‟s conduct
caused the alleged injury. Where a claimant has sustained an injury due to
the alleged negligent failure to provide information or obtain consent in
relation to the provision of medical treatment, then a claim must be brought
under tort law principles in the courts (Espersson 2000a; 2006; 2009).

Review and appeal mechanisms

3.26 If claimants are unhappy with the decision made regarding their
eligibility and/or entitlements under the scheme, they may apply to the Patient
Claims Panel. This Panel consists of a chairperson who is, or has served as,
a judge, and six other members who are appointed for three year terms. The
members bring differing areas of relevant expertise to the work of the Panel.
The Panel aims to promote fair and consistent application of the terms of the
PIA 1996 and issues opinions at the request of claimants, health care
providers, insurers or the courts. The Panel is an advisory body and therefore
its opinions operate as recommendations only, but there is a high level of
compliance. It is estimated that in 10% of claims brought before the Panel
their recommendation was that cover be granted by the PFF (Espersson
2000a; Hellbacher et al. 2007; Essinger 2009), with 70% of claims being
settled in 6 months.

3.27 On average around 10,000 claims are lodged per year, of which
around 4,500 receive compensation, with 50% of the claims being settled at a
cost of under £2,000 (see Figure 8). Around 1,000 claims go to the Patient
Claims Panel and of these 100 are approved per year. There are around 10-
15 court case per year of which 1-2 are successful. The administrative cost
for each claim is 25,000SEK (£2,268) and between 1980 and 2007 a total of
45 payments over the maximum of 8.5 million SEK (£773,000) were made.




                                         33
      Figure 8: Sweden - Costs for claims paid in 2006-07

             Costs for paid claims
                 (2006-2007)
              Compensation SEK            British pounds      %
                      0 - 9 999                 0 - 868       35
                10 000 - 19 999              868 - 736        15
                20 000 - 49 999             1736 - 4340       26
                50 000 - 99 999             4340 - 8680       12
               100 000 - 499 999           8680 - 43316       10
               500 000 - 999 999          43316 - 86805       1
                  1 000 000 -                 86805 -         1

3.28 We were advised that, although no specific studies had been
conducted, the level of under-claiming was estimated as being high. It was
suggested that about 10% of patients sustain some kind of injury; this equates
to around 100,000 people annually, but only 10,000 claims are received. In
an article in the September 2009 Upsala Journal of Medical Sciences,
available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2853784 Professor
Emeritus Henry Johansson notes that:

      “….international studies have shown that the incidence of adverse
      events varies between 2.9% and 16.6% among hospital patients.
      These varying figures are explained in part by the difficulty in defining
      the concept of adverse event. However, data indicate that about half of
      the events are considered preventable and about 5% contribute to
      death. Although extrapolation is difficult, international figures suggest
      that about 30,000 patients in Sweden (for a population of 9 million) are
      treated annually for avoidable patients‟ injuries and, for 1,500
      individuals, these preventable events lead to death. These figures are
      in sharp contrast to the official statistics reporting 9,000 – 10,000
      patient injuries per year. The data indicate that about 0.2% of all
      admissions in Sweden result in a patients injury claim.”

3.29 Customer surveys show that 50% were positive about the
compensation scheme but others were unhappy with the scheme because:

         57% received a letter saying that they had no entitlement under the
          scheme;
         Adjudication can be lengthy – for example, it can take 6 months to
          get a decision and longer to get compensation; and
         There is insufficient discussion with patients.

3.30 One possible drawback of the scheme was the number of small claims
handled, as this can be particularly time consuming. These claims often
related to dental injuries.




                                     34
Additional information

3.31 A sample of hypothetical cases was devised by members of the
working group, which were evaluated in Sweden by Professor Emeritus Henry
Johansson. It is of note that there was a general equivalence in outcome with
the current system in operation in Scotland. In other words, cases that would
likely be compensated under the Swedish Scheme would also probably attract
compensation in the current system in Scotland, or at least this was true of
the examples we devised.

3.32 Kaj Essinger, Senior Advisor, Swedish Medical Injury Insurance kindly
participated in a video conference in August with some members of the Group
to help in our understanding of the Swedish scheme. Figures provided by Kaj
show that 99.9% of claims are resolved out of court by an administrative
procedure involving 1 claims handler and 1 doctor examining the medical
records of the injury, together with a written statement from the doctor
involved in the treatment. Similar difficulties to those experienced in Scotland
concerning the completeness/vagueness of medical records were
experienced in Sweden. Kaj suggested that costs were minimised because
treatment for the injury was provided by the state and patients were supported
by a good welfare system. The costs associated with compensation of
neurologically impaired infants (generally a particularly high cost group in
terms of compensation) were around 1/10 of the costs in England, Canada,
and France.

Conclusion

3.33 We selected the New Zealand and the Swedish models for specific
consideration, not just because they are well-established, but also because
one is a stand-alone scheme, while the other co-exists with the possibility of
litigation; two of the options we identified for consideration in chapter 1. The
schemes briefly considered above may differ in funding basis, extent and
process, but each has as its goals the facilitation of access to justice, the
provision of adequate compensation for injured patients and appropriate
adjudication of claims. As will be seen in the next chapter, these are also
goals which the working group believes should inform the system of
compensation in Scotland.




                                        35
Chapter 4

Analysis of Principles

4.1    At the outset of our deliberations, we asked some fundamental
questions of principle which guided our general discussions.

      What should a no fault system be trying to achieve?

      Why would we single out medical from other injury?

      How, if at all, can a compensation scheme meet the needs of those for
       whom financial payment is not what is really wanted?

4.2    While we were, of course, given a remit that only covered medical
treatment injury, we nonetheless felt that some general justification for this
was appropriate, since claiming after any personal injury can be both
problematic and stressful. The factors already identified in chapter 2 suggest
that seeking compensation for medical injury presents specific legal problems
and on these grounds alone special consideration could be justified. In
addition, we concluded that healthcare was a social responsibility; when
something goes wrong it is not unreasonable to argue that society should pick
up the bill to put it right in as much as this is possible. We will return to the
third bullet point above in chapter 6.

4.3     Consideration of the first question led the group to devise a set of more
refined criteria and principles which would be used to test the benefits of
different systems for compensating the victims of medical injury. Three
separate lists were developed, highlighting those principles that we agree are
(i) essential; (ii) desirable; and (iii) associated with wider issues such as
patient safety and learning.

       (i) Essential Criteria
        The scheme provides an appropriate level of compensation to the
            patient, their family or carers;
        The scheme is compatible with the European Convention on
            Human Rights;
        The scheme is easy to access and use, without unnecessary
            barriers, for example created by cost or the difficulty of getting
            advice or support;
        People are able to get the relevant specialist advice in using the
            scheme;
        Decisions about compensation are timely;
        People who have used the scheme feel that they have been treated
            equitably;
        The scheme is affordable;
        The scheme makes proportionate use of time and resources;




                                       36
          The scheme has an appropriate balance between costs of
           administration (e.g. financial or time) and the level of compensation
           awarded;
          Decisions about compensation are made through a robust and
           independent process;
          A reasonable time limit is set for processing claims
          The scheme has an independent appeal system.
          The scheme treats staff and patients fairly/equitably.
          A reasonable time limit is set for compensation claims

      (ii) 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;

       (iii) Wider issues
        The scheme contributes to:
              organisational, local and national learning,
              patient safety
              quality improvement
        Lessons learned can be used to influence organisational risk
             management in the future;
        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 or fitness to practise.

Before outlining and evaluating specific options for the provision of
compensation, one important issue needs to be resolved; namely, the
compatibility of the various options with the terms of the European Convention
on Human Rights, fully incorporated into UK law by the Human Rights Act
1998. It is taken as read that the current system (even if amended in line with
our discussion below) is compatible with the Convention. However, it was
necessary to consider whether or not this could also be assumed were we to
recommend a move to a no fault system.

No Fault Liability and Human Rights Issues1

4.4 Two particular issues fall to be considered under this heading. First, and
most obviously, article 6 of the Convention (the right to a fair and public
hearing) may have a bearing upon the method and processes of decision-
making in this area. There are two questions here: first, whether a move from
a system of determination of liability to one of determination that harm has
1
        We are most grateful to Professor Jim Murdoch, Professor of Public Law, University
of Glasgow for providing us with this section.


                                            37
been occasioned gives rise to any ECHR issue; and second, if so, whether
the procedure for determining cases could give rise to incompatibility with fair
hearing guarantees.

Replacing a system based upon the establishment of fault with one of „no
fault‟

4.5 The question here is whether Article 6 would apply. To qualify as an issue
which affects „civil rights and obligations‟ within the meaning of Article 6(1),
four conditions must be satisfied: there must be a genuine claim or dispute
relating to law or fact; this must relate to a right or obligation recognised by
domestic law; the right or obligation must be broadly civil in character; and the
outcome of the dispute must be „directly decisive for the right or obligation‟.

4.6 The move to a no fault system of liability would probably satisfy these four
tests. First, in the event of a dispute as to whether harm has been caused,
there will still be a „dispute‟ as to a matter of fact. Second, any right to
compensation embodied in legislation would continue to be a substantive
right, and not one based on purely discretionary authority, as the right to
compensation would now exist where it can be shown that harm has resulted
from a particular activity. It would thus continue to satisfy the „arguable basis
in domestic law‟ test, even if compensation were to be payable by a public
authority. Third, even if the compensation were to be paid by a public
authority upon „no fault‟ principles, this would continue to be regarded as a
„civil right‟, as the right has a close relationship with compensation schemes
based upon traditional concepts of „negligence‟: in other words, the private
law features of such a scheme are liable to be considered of greater
significance than any public law elements (as an example, entitlement to
social welfare benefits - with the exception of welfare benefits of a purely
discretionary nature - is now firmly considered a „civil right‟). The fourth test –
whether the outcome of the dispute would determine the right or obligation –
would also be satisfied.

Procedural determination of questions arising under a „no fault‟ system

4.7 Assuming that Article 6 does apply to disputes arising under the
introduction of a „no fault‟ system, the next question would be whether the
procedure for determining them would be compatible with Article 6.

4.8 The significant issue here relates to the right to appeal adjudication. A
right of appeal to a tribunal-style adjudication agency enjoying an adequate
level of independence and impartiality and with sufficient „equality of arms‟
between the parties would certainly satisfy Article 6 requirements, particularly
if any defects in fair hearings could be cured upon appeal (or review) on
matters of law to the ordinary courts (that is, as long as the ordinary courts
have „full jurisdiction‟ - the possibility for the reviewing court not only to
consider the complaint, but having the ability to quash the impugned decision
and to remit the case for a new decision by an impartial body if the review
court does not itself then take the decision).



                                        38
4.9 In fact, there are potentially two positive aspects of a no fault system from
the perspective of Article 6. First, the new system could allow for the more
rapid disposal of cases which may be both complex and of potentially
significant importance to individuals. This could thus be promoted as an
important advance in terms of Article 6 obligations. The new procedure might
also lead to the more rapid disposal of cases involving medical accidents,
particularly in the light of some case law suggesting that exceptional diligence
is required where a case is of particular importance to a party (as, for
example, in A and others v Denmark where the applicants had sought
damages after contracting AIDS).

4.10 Second, while the requirements of Article 6 normally include the right to
a public hearing, issues of confidentiality are liable to be addressed with
greater care by a system of expert tribunals. There is some case law under
Article 8 (the right to private and family life) requiring the careful handling of
sensitive personal data relating to health. The move to a no fault system may
well enhance protection of private life.

4.11 However, irrespective of whether Article 6 applies or not, it would still be
possible for an individual to challenge the determination of an award of
compensation using grounds available in administrative law. For instance, it
would remain possible for the decision-maker to be challenged as having
taken an irrational decision: or one in which the basic principles of natural
justice had been denied. Such challenges would be by way of judicial review
in the Court of Session. This is, however, an expensive procedure and should
this become a regular feature of a „no fault‟ system, could potentially
undermine the entire system.

4.12 In short, the issue of fairness in the determination of awards for
compensation cannot be considered only by reference to human rights
principles.

Positive obligations of the ECHR

4.13 Of crucial importance is the question of whether a no fault system would
permit the discharge of a State‟s positive obligations towards patients. This is
most obviously relevant in relation to the need to ensure the careful scrutiny of
the circumstances in which a patient has died while receiving medical
treatment. The European Court of Human Rights has been expanding the
scope of the important positive obligations upon a state to ensure that the
right to life – under Article 2 - is an effective right. This complements the need
for the provision of effective remedies under Article 13.

4.14 An indirect example of the application of this principle arose in the case
of Vo v France in which an individual had been forced to undergo an
involuntary therapeutic abortion as a consequence of medical error. The
question before the Court was whether domestic law had adequately
protected the right to life of the unborn foetus. Since an action for damages
had been available and the applicant had not made use of it, the question was
avoided and no violation of Article 2 was established, although the Strasbourg


                                        39
Court did reaffirm the existence of a positive obligation to ensure that
domestic law was adequate to ensure that medical staff could be called to
account if they failed to protect patients‟ lives. It is highly unlikely that the
proposed no fault system would not recognise the right to compensation in
such a case. Whether it would also hold negligent medical staff to account
through judicial processes is, however, not as clear. In other words, it may
also be necessary to approach the question as to whether other Convention
guarantees (in particular, Articles 2 – the right to life, article 3, prohibition on
torture or inhuman and degrading treatment and article 8, the right to private
and family life are fully addressed.

4.15 The key notion is that in certain cases (again, most obviously, in
relation to loss of life, but also in respect of other outcomes in which an
individual may claim to have suffered treatment contrary to the Convention)
there must be an effective investigation into the circumstances giving rise to
the loss of life, etc. The premise is that without this, the right would be merely
theoretical.

4.16 Initially, a procedural requirement to carry out an effective investigation
in order to ascertain whether the loss of life could have been avoided, etc
originated in cases in which state officials were involved in the taking of life
during policing incidents. Thereafter it was extended to cases in which the
state has a particular duty of care (e.g. in relation to persons detained by the
State). Subsequently, it has been further extended to cases involving the
provision (or failure to provide) medical services in certain circumstances in
which an individual may have an arguable claim to be a „victim‟ of a violation
of the Convention. It is important to emphasise that the obligation will only
arise in certain circumstances.

4.17 The obligation to carry out an effective investigation is designed not
only to examine the actual instance in which, for example, loss of life
occurred, but also to examine whether the management and organisation
contributed to the harm or loss of life.

4.18 Further, the obligation is one of means. If responsibility arises, it should
be addressed. This does not necessarily mean that domestic law must punish
instances where loss of life has occurred in the criminal courts: indeed, in the
area of medical provision, it is highly unlikely that the responsibility would so
extend (unless there were cases in which taking of life was deliberate). There
are now, however, strong suggestions that health services must have rigorous
procedures in place to examine, for example loss of life or other treatment
falling short of acceptable standards and resulting in serious ill-treatment.

4.19 In cases of medical maltreatment, the civil law clearly discharges this
function: in determining whether there is right to damages, a court would be
required to determine the facts, and adjudicate on the issue where there have
been shortcomings. In short, individuals at fault can be named and action can
be taken thereafter.




                                         40
4.20 A vitally important key issue for a no fault scheme of compensation,
then, is whether it or a parallel process would provide the rigorous
examination of alleged serious mistreatment needed to permit the allocation
of some form of personal responsibility. We return to this question in
chapter 5.




                                     41
Chapter 5

Options Considered

5.1 As explained in chapter 1, the following five options were identified for
consideration:

       a. Establishing a no fault system to run alongside the existing system;
       b. Establishing a no fault system and abandoning the existing system;
       c. Simply retaining the existing system in its present form;
       d. Recommending retaining the existing scheme with certain
          improvements; and
       e. Establishing a no fault system to run alongside an improved version
          of the existing system.

5.2 The principles that we identified as being essential to a compensation
scheme can broadly be summed up as amounting to the need for
accessibility, fairness, appropriateness of compensation, timeliness of
adjudication and cost-effectiveness. Account of each of these elements will be
taken in what follows. The human rights considerations have already been
dealt with in chapter 4, but where relevant they will be referred to in this
chapter also.

5.3 It should be noted that the possibility of establishing a no fault scheme in
Scotland was considered some years ago. The Report of the Expert Group
on Financial and Other Support in 2003 (Lord Ross‟s report) concluded that
no fault compensation may have advantages, including: speed; ease of
access; reduction in legal costs; and reduction of stress for both claimants
and health professionals. However, the report also considered that there were
disadvantages to no fault schemes, in that they tend not to encourage
improvements in quality of care as a result of lessons learned. Furthermore, in
both Sweden and New Zealand, because the issue of fault had not been
entirely eliminated at that time, the Report argued that the end result was a
bureaucratic system which tried to tackle the complex issues of negligence
and causation without the benefit of legal expertise. It was concluded that
these were major disadvantages and the Expert Group ultimately declined to
recommend the introduction of a general no fault compensation scheme.
Accordingly, the report concentrated on making recommendations designed
to improve the current systems for resolving health service disputes.

5.4   We now turn to the options identified in our consideration of this matter.

       (a) Establishing a no fault scheme to run in parallel with the existing
       system

       (i) In terms of our inquiry, it was agreed that if a no fault system was
       introduced it should cover:

                 Anyone who was injured resulting from medical treatment
                  (medical injuries may result as well from the acts or


                                        42
           omissions of non-professionals – such as a secretary failing
           to transmit details of an essential clinical appointment);
          Injury sustained in Scotland; and
          Both NHS (including independent contractors) and private
           healthcare provision.

(ii) We also agreed that rather than attempting to define those injuries
which would be covered by the scheme, it was preferable to list those
that would be excluded. Finally, we agreed that we did not favour the
use of a tariff system for compensation, as this would not address
individual needs and in any case it was felt to be unlikely that people
would buy into a system where compensation was based on a tariff
basis. This, therefore, points to levels of compensation equivalent to
those that would be awarded by a civil court.

(iii) We also recognise that there are potential financial implications
arising from the potential for increased numbers of eligible claims under
a no fault scheme, since certain of the barriers to successfully claiming
under the existing scheme (such as the need to meet the Hunter v
Hanley test) would no longer apply. However, we also bear in mind
that, given that evidence of causation remains a requirement in a no
fault scheme, potential claimants may still find themselves excluded
from compensation, which will also have an effect on costs

(iv) Were a no fault scheme to operate in parallel with the existing
system, it seems feasible that a number of people who fail under one
scheme would then attempt to obtain compensation under the other.
This would add to overall costs. If this is seen as a problem that should
be avoided, then it would be necessary to devise distinct eligibility
criteria for each scheme to avoid „double dipping‟.

(v) For many people access to a good no fault system is likely to be
preferable to litigation (all the evidence is that people do not want to go
to court) and that this will make the danger of double dipping unlikely to
happen in practice. On the other hand, we believe that individuals who
fail in the courts should have a right to try again through the no fault
scheme – because the burden of proof in the former is considerably
higher. We do not believe that those who succeed in the no fault
scheme should then be entitled to use that decision to launch litigation,
unless any damages awarded by the no fault scheme are deducted
from any court-authorised award.

(vi) In human rights terms, the new system would also require to have
an appeals system built in, with ultimate recourse to the courts on
matters of fact as well as law, potentially leading to protracted (and
costly) proceedings. Moreover, if the new system were to co-exist with
the current one, the flaws identified in the current situation would
continue to exist. The goal of ensuring accessibility and affordability
would, therefore, only be partially met, if they are met at all. Equally,



                                 43
the problems regarding the availability of specialist advice would
remain.

(e) creating a no fault system to run in parallel with an improved version
of the existing system

(i) Although this is out of sequence, it makes sense at this stage to
consider (e) above; namely the establishment of a no fault scheme to
sit alongside an improved version of the current system. While the
potential problems associated with possible „double dipping‟ would
remain, remedying some of the problems identified in the current
scheme (see chapter 2) might better equip the combined systems to
meet the principles that we have identified as being essential. In what
follows, we consider suggestions as to potential improvements to the
existing system, based on the problems which were identified in
chapter 2.

(ii) Length of time: many reparation claims can take months, if not
years, between initial investigation and final resolution by way of
judgement or settlement. This is one of the major failings of the current
system, yet this is an area where reform could be made and could lead
to efficiency savings. One of the most striking features of the existing
Scottish system is that, in stark contrast to England, and indeed stark
contrast to other types of claims even in Scotland (such as personal
injury claims or non-medical professional negligence claims), there is
no framework which regulates how potential claims should be made,
processed or resolved.

(iii) The main legal time limit is that court proceedings must be
commenced within 3 years of the date of the negligence happening or
coming to light, or in cases involving children, by the child‟s 19th
birthday. While Court procedures have been reformed (and further
reforms will follow as a result of Lord Gill‟s Scottish Civil Court Courts
Review), these reforms to Court procedure do not deal with the vast
majority of claims that are made and resolved without the need for
litigation and within the three year period.

(iv) While England has had a pre-action protocol for a number of years,
Scotland has been slower to follow suit. A voluntary pre-action protocol
was introduced on 1 January 2006 in respect of personal injury cases
and a voluntary pre-action protocol in professional negligence (non-
medical) cases is also now in place in Scotland. Unlike in England and
Wales, there is no statutory basis for these pre-action protocols. They
are, however, widely used and followed in other areas of law in
Scotland.

(v) Delay in disclosure of information: parties frequently do not „show
their hand‟ until the parties are well advanced into the adversarial
process.



                                 44
(vi) Those representing clinicians complain of not being given sufficient
notice of the factual allegations by those representing the patient as to
exactly what is being alleged so that a proper investigation can be
carried out. Those representing the patient complain of not being given
information regarding internal Critical Investigation Reports and not
being able to obtain access to the medical practitioner or colleagues to
obtain a factual statement as to what happened. This can lead to a
patient‟s case being dependent on the contents of what happens to be
in the medical records, whereas there may be other relevant evidence
not known to the patient or the patient‟s representative. This
information sometimes is not disclosed /shared/ reciprocated until
matters are well advanced.

(vii) At present, the quality of internal Critical Incident Reports varies
from operational unit to operational unit and whether those reports are
disclosed to the patient also varies from hospital to hospital.
Consistent disclosure of such reports at an early stage so that material
and relevant facts are identified would reduce the identified delays.

(viii) Delay in focussing the issues: crucial issues in the dispute
frequently do not become focussed until late into the investigation.
Problems can arise in practice because of the mobility of medical
personnel who can frequently rotate from one job to another as part of a
natural career progression. Imposing an obligation on health staff to
co-operate with previous employers would enable potential claims
relating to them to be dealt with more swiftly.

(ix) A problem can frequently be encountered in terms of the provision
of reports by independent medical experts. Experts, who it should be
noted are entirely voluntary, if they are to accept instructions could be
required to agree to provide a report within a certain period of time.
(This can bring its own problems as the pool of available experts in a
number of specialities, is small). Early identification of all relevant
issues and disclosure of those issues would reduce the likelihood of
delays and would enable detailed information to be provided by
clinicians while events are still comparatively fresh in their minds,
enabling earlier exploration of issues with a view to resolution before
parties become entrenched in a long running adversarial process.

(x) Uncertainty of outcome: parties sometimes have no idea as to the
likely outcome until the adversarial process is well advanced. No
system is perfect in terms of certainty, but the stress associated with
this could be reduced by much swifter negotiation and resolution
through an agreed set of procedures, particularly if those procedures
are designed to reduce the need for parties to proceed to or threaten
litigation.

(xi) Perception of lack of openness: there is a perception by many
claimants that there has been a lack of openness by clinicians or those
representing clinicians. It is the perception of some clinicians and


                                 45
representatives that clinicians will apologise for an obvious error, but
the reason that an apology might not be made is that the clinician might
only know there has been negligence once an opinion is obtained from
an independent expert as to whether the treatment in question was
negligent or not.

(xii) From the perspective of those representing patients there is a
perceived reluctance on the part of clinicians to acknowledge error. It
may also be that while some clinicians are prepared to tell a patient
about an error, with or without an apology, patients‟ representatives are
clear that a significant number do not. Further, even of those clinicians
who may be prepared to advise a patient of an error, not all will agree
on what is an obvious error and so clinicians will have „variable
thresholds‟ for disclosure. From a professional standpoint, the GMC
makes the position clear.

(xiii) Section 30 of the GMC Guidance of „Good Medical Practice‟
states that:
         “if a patient under your care has suffered harm or distress, you
        must act immediately to put matters right, if that is possible. You
        should offer an apology and explain fully and promptly to the
        patient what has happened, and the likely short term and long
        term effects.”

(xiv) Section 31 continues

       “Patients who complain about the care or treatment they have
       received have a right to expect a prompt, open, constructive and
       honest response including an explanation and, if appropriate, an
       apology. You must not allow a patient‟s complaint to affect
       adversely the care or treatment you provide or arrange.”

(xv) That the patient should have a right to know in England and Wales
is reflected at page 25 of the Coalition Government Programme
published on 20 May 2010 which states „we will require hospitals to be
open about mistakes and always tell patients if something has gone
wrong‟. Increased disclosure and sharing of Critical Incident
Investigation reports would also reinforce this ethos of openness.

(xvi) Access to Justice: there is a significant shortage of solicitors and
advisors who have the expertise to deal with medical negligence cases
in Scotland. As a result, many claimants can receive poor or
inadequate advice, with a low number of cases leading to „satisfaction‟.
This can also lead to „Inequality of arms‟ – clinicians will generally be
represented by specialist lawyers, but patients frequently are not.

(xvii) This is a major issue in Scotland, where there are only 6
accredited claimant clinical negligence specialists. A significant factor
is the lack of resourcing and training for lawyers and representatives in
this field. At present, advice and support to NHS service users is


                                 46
available through the Independent Advice and Support Service (IASS)
which is currently provided through the network of the Citizens‟ Advice
Bureau (CAB). The current contracts for the provision of IASS are due
to expire on 31 March 2011 when the service will be replaced by the
Patient Advice and Support Service (PASS) under the proposals set out
in the Patient Rights (Scotland) Bill currently going through Stage 1
consideration in the Scottish Parliament.

(xviii) What should be a comprehensive network of solicitors in private
practice throughout Scotland is, in fact, patchy. Consideration needs
to be given as to how to improve and increase access to justice. In
addition, it should be considered whether a review of legal aid rates and
the fee structure would attract practitioners prepared to deal with this
type of work. This would also help to redress the current imbalance
between clinicians generally having expert representation and patients
frequently being without it.

(xix) Expenses: many patients who have suffered injury feel unable to
take matters forward because of the expense of instructing a solicitor,
or an inability to recover all expenses even if successful. At present,
there are four main avenues of potential funding open to a client,
namely:

       legal aid/legal advice and assistance through the Scottish Legal
        Aid Board, assuming the client is financially eligible;
       the client pays solicitor fee on a private basis;
       „before the event‟ insurance, typically a DAS type household
        insurance covering legal expenses (this is comparatively
        unusual). This insurance covers the legal costs involved in
        pursuing or defending a claim. Legal costs include the
        appointment of solicitors, barristers and expert witnesses; or
       „after the event insurance‟ frequently in conjunction with a „no
        win no fee‟ speculative agreement. It is, however, unusual for a
        solicitor to take on a clinical negligence case on a speculative
        basis because of the highly risky nature of the case and the
        considerable expense of the insurance premium which can run
        into thousands of pounds. In addition, even if the client is
        ultimately successful in the claim, the client cannot recover the
        insurance premium. In England, the „after the event‟ insurance
        premium can be recovered as part of the legal costs if the party
        is successful. We noted, however, that proposals, from Lord
        Justice Jackson‟s review of civil litigation costs strongly
        recommend that recovery of after the event insurance premiums
        be abolished in England.

(xx) Although changes have been made to the availability of legal aid to
take a case to Court, these changes do not affect the vast majority of
potential claimants who seek to resolve their case without litigation and
who are dependent on legal advice and assistance, which has more
limited eligibility criteria than full legal aid.


                                47
(xxi) Disproportionality of legal expenses: the legal expense of
investigating and pursuing the claim can be disproportionate to the
value of the claim. At present, similar steps can be taken by both
claimants and defenders regardless of the value of the claim. A
complex report on Hunter v Hanley negligence may require to be
obtained from an expert irrespective of the value of the case. Similarly,
reports on causation can be just as expensive for low value claims as
for high value claims. It is, of course, possible that the parallel
existence of a no fault scheme might encourage claimants to use this
when the value of their claim is low and, if so, this would be a direct
benefit.

(b) creating a stand alone no fault scheme and abandoning the existing
system

(i) The reported benefits and drawbacks of no fault schemes have been
discussed above, and are also spelled out in more detail in Volume II of
this report. In terms of meeting the elements we have regarded as
essential to an appropriate scheme, many can be satisfied by the
introduction of an accessible scheme that is effectively cost-neutral to
the claimant and efficient in its processes. However, we do foresee
some potential problems.

(ii) By and large in no fault systems for largely financial reasons there
may be, or develop, a tendency to impose increasingly restrictive
eligibility criteria which deny individual claimants the benefit of easy
access. This outcome seems plausible where the scheme is state
funded, even if it does not cover all personal injury and is limited to
medical injury. That being so, while administrative costs may be lower
(especially if one takes into account the costs associated with legal
representation in the current system), the costs of compensation might
either be equivalent or, if an increase in claims results from the easier
access to justice postulated under a no fault scheme, potentially
considerably increased.

(iii) Given that financial compensation is not the only - or even the
primary – desired outcome (see discussion in chapter 6) schemes such
as the New Zealand Accident Compensation Scheme which inherently
address the need for additional support and rehabilitation may make
lower financial settlements more acceptable. Of course, there are
costs associated with rehabilitation, but for the moment these are
incalculable. However, even if they are significant, the availability of
continued support may encourage a perception of fairness in the
system. Arguably, the absence of a „blame culture‟ would satisfy the
imperative to ensure that staff are also treated fairly.

(iv) Nonetheless, there may be issues about the acceptability of
removing the right to litigate. In a society such as ours, where a rights-
based culture is deeply ingrained, loss of the right to litigate might be


                                48
      seen as a step too far. On the other hand, the potential benefits in
      terms of eligibility might make this more palatable. Although the right
      to litigate might be reduced, the ability to receive compensation might
      be strengthened.

      (v) Finally, assuming that the system has adequate in-built appeals
      procedures, with a final appeal to the courts, in this respect it would be
      human rights compatible.

      (c) Simply retaining the existing system in its present form

      From what has been discussed above, it would seem that this would
      not be an option that would satisfy many of the essential elements in a
      compensation scheme that we have identified above.

      (d) Recommending retaining the existing scheme with certain
      improvements

      Possible remedies for some of the problems identified in the current
      scheme (see chapter 2) have been discussed above at (e). From
      these discussions, even with improvements, it would seem that the
      existing system would not satisfy many of the essential elements in a
      compensation scheme we have identified above.

Evaluating the options

5.5 We tested the existing medical negligence system, the existing system
with the suggested possible improvements discussed above, together with the
New Zealand and the Swedish system against the principles and essential
criteria set out paragraph 4.3. The Swedish model came out on top meeting
more of the criteria than any of the others. We were also impressed by the
New Zealand system‟s direct and specific emphasis on rehabilitation, and
consider that this should be a central focus of any revised scheme in
Scotland, particularly given that the main priorities of many patients seem not
to be financial.

Conclusions

5.6    Before outlining our final recommendations, as we indicated earlier
there are a number of issues outside of the legal system itself that, we
believe, require consideration as they seem likely to have a direct impact on
the actual quality of any system proposed and may also have an effect on
take-up and therefore on fairness, costs and a number of the other elements
that we regard as essential to whatever scheme is recommended.




                                      49
Chapter 6

Additional Considerations

6.1    As we noted earlier, a number of issues came to light in the course of
our discussions that the review group believes are relevant to the likely
success of any system agreed upon. While we were not invited to consider
issues beyond those directly related to the legal basis for liability, we offer
some thoughts on these associated matters in this chapter in the hope that
they may be of some interest and assistance.

What patients want

6.2    At the outset of our discussions, we sought to identify what we, as a
group, considered a compensation system should be trying to achieve. We
agreed that this was not just about financial compensation; rather the
objective should be to restore the person who had been harmed to the
position they had been in prior to the injury, as far as this is possible. This will
include restoring their ability to function as well as possible. Non-financial
assistance, such, for example, as rehabilitation, the provision of aids and
appliances, as well as some investment in the restoration of trust and
rebuilding of the relationship with healthcare professionals so that a patient
feels confident to go back to same practitioner or institution are fundamentally
important.

6.3      Our research team (Farrell et al, 2010) reported that previous research
suggests that when an error has occurred, patients expect doctors to make a
meaningful apology, provide an explanation and take steps to prevent the
error from recurring (Allsop 1994, Hickson 2002, Hickson et al 1992, May and
Stengel 1990, Mazor et al 2004, McCord et al 2002, Vincent et al 1994,
Witman et al 1996). To a much lesser extent, injured patients wanted
financial compensation (Mulcahy et al 1996, Shapiro et al 1989, Genn and
Lloyd-Bostock 1995), and compensation is usually discussed in the context of
meeting a particular need (Genn and Lloyd-Bostock 1995). The research
team‟s results from their discussions with pursuers and other stakeholders are
broadly similar to these earlier studies. However, as previous research has
largely taken a quantitative approach; there has been little in-depth
consideration of what pursuers really mean by an explanation, prevention of
future errors, apology or compensation. Nonetheless, there does seem to be
evidence to support the contention that for many, if not most, patients their
primary aim is to obtain an apology, an explanation and some reassurance
that the system will learn from the experience. This is a very different
process from that of allocating individual blame. However, it does require a
culture in which honest and open conversations are encouraged and
facilitated.

6.4   We consider that in order to benefit patients, clinicians and the service
as a whole, a change in culture is needed; there needs to be a willingness to
discuss adverse incidents in order to enable learning. This would potentially
reduce or remove the apprehension of involved staff; reduce the focus on


                                        50
blame and negligence; and foster the ability to be open and honest at an early
stage. Patient safety should be the primary consideration and it was noted
that doctors and other healthcare personnel have a professional obligation to
explain and apologise where appropriate.

6.5    There was consensus in the group that an effective complaints
procedure should facilitate and encourage open disclosure. The group was
of the view that a no fault system in itself would contribute directly to a more
open and less defensive culture.

6.6    The idea of introducing a statutory Duty of Candour on healthcare
organisations was raised but there was no consensus reached on this by the
group.

Complaints procedures and legal claims

6.7    A difficulty that the Review Group has faced throughout its
deliberations has been the wish not to stray from its remit. The Review Group
has sought to focus on its immediate remit of examining compensation
systems, while at the same time not ignoring related issues such as the
operation of the NHS Complaints Procedure.

6.8     This is a significant issue for patients and their advisers. The fact that
intimation of a potential claim for compensation brings a complaint under the
NHS Complaints Process to an end causes a major problem for patients:
effectively it means that patients have to choose between making a complaint
and raising an action seeking compensation. While it may be the case that
those seeking financial compensation will proceed directly to attempt litigation,
we nonetheless feel that this situation should be remedied as it creates an
unnecessary disconnection between the issue of compensation and the issue
of non-financial remedies such as an apology/explanation/ prevention of
recurrence, whereas in reality all of these issues are inextricably linked.

6.9    A view was expressed that one important practical difficulty with the
present situation is that a potential claim for compensation frequently has to
be „parked‟ while the NHS Complaints Process runs its course. However, the
complaints statistics for 2008-09 show that around 70% of complaints are
responded to within the 20 day deadline and the median is 18 days. If the
complaints procedure is entered into in the right spirit by both parties, it has
the potential to deliver on issues that are vitally important for the patient.

6.10 The rationale behind the current system is that if a complaint were to
continue when a claim for compensation is also proceeding, this would
somehow inhibit open disclosure by healthcare staff. and professionals.
Because the current system for compensation is based on negligence, it
contributes to a culture which makes it harder for health professionals to be
open and honest about what has happened. While there are professional
guidance and ethical guidelines in this area, these in themselves do not
ensure that health professionals respond in a way which contributes to
openness.


                                       51
A Right to Complain

6.11 We noted that provisions in the Patient Rights (Scotland) Bill,
introduced to the Scottish Parliament in March 2010, provide for a specific
right to make a complaint.

6.12 The Policy Memorandum concerning the „Right to Complain‟ that
accompanied the Bill presented to Parliament and available at:
http://www.scottish.parliament.uk/s3/bills/42-PatientRights/index.htm. states:

      The aim is to improve patients‟ awareness of their right to lodge a
      formal complaint and also to help ensure that patients have a better
      understanding of how their complaint will be dealt with. The Bill repeals
      the Hospital Complaints Procedure Act 1985 which placed a duty on
      health authorities in England and Wales and Health Boards in Scotland
      to establish a complaints procedure for hospital patients. This will be
      replaced with the measures outlined in the Bill and with further
      measures in secondary legislation. The Bill also legislates for the
      handling and monitoring of complaints and how these can be used to
      improve health services. It is intended that when a patient makes a
      complaint they should be informed also of the advice and support
      available to them.

      Through secondary legislation and directions, the Scottish Government
      will set out clearer monitoring procedures and feedback mechanisms,
      to assist in using complaints to improve the health service, and will
      amend timescales to respond to complainants with the result of an
      investigation. From the Making It Better research on the complaints
      process, it was apparent that differences between hospital complaints
      processes and primary care complaints processes may be confusing
      for complainants, and that there was some concern about the capacity
      to properly investigate a complaint within the shorter timescale in
      primary care complaints processes.‟

6.13 There is also a logical inconsistency in the current situation. We
conclude that consideration should be given to the benefits of the proposed
regulations and guidance in the Patient Rights (Scotland) Bill being written so
as to allow compensation claims to be pursued without affecting a patient‟s
right to have a complaint investigated under the NHS Complaints Process.
A letter was submitted by the Chair of the No-Fault Compensation Review
Group to the Patient Rights Scotland Bill team in September requesting this
be considered.

6.14 It is worth noting that the Welsh Assembly Redress scheme proposes
that redress and complaints will be considered under one system.

6.15 On a practical level in many Health Boards, complaints procedures
tend to be dealt with by different personnel from those dealing with claims.
Consideration may therefore need to be given to whether there would need to



                                      52
be redeployment or retraining of NHS staff to avoid unnecessary duplication
of work.

6.16 Part of that consideration will need to take account of the fact that the
SPSO provides an independent and free service for the consideration of
escalated complaints, including those about the NHS. The work of the SPSO
is governed by the provisions of the Scottish Public Services Ombudsman Act
2002.

6.17 The role of the SPSO in complaints about health services is unique in
its portfolio in that it can consider both maladministration and clinical
judgment. In all other areas of its jurisdiction, the SPSO cannot consider
discretionary (professional) decisions taken in the absence of
maladministration.

6.18 The provisions of the 2002 Act are such that the SPSO is precluded by
statutory restrictions (specifically Section 7(8)) from considering matters of
complaint where an individual has (or had) a right of remedy and redress
through a legal avenue. Where individuals pursue legal action with an
expressed intention to secure financial compensation, the SPSO will not
normally accept a parallel referral for consideration.

6.19 This is a significant consideration where any suggestion concerning the
alignment of complaints and compensation processes in the NHS is
concerned. Whilst their alignment would provide for clear benefits in the
patient experience, it would potentially have the perverse effect of reducing
their rights in administrative justice terms.

6.20 It is suggested that the one way of tackling this and other issues
relating to the effective functioning of the NHS complaints procedure, is to
direct the group‟s findings to the SPSO so that they can be considered in the
context of the Ombudsman‟s work in developing a Complaints Standards
Authority (CSA) under new powers provided by the Public Services Reform
(Scotland) Act 2010.

6.21 Through its new CSA function, the SPSO has recently consulted on a
framework of core complaint handling principles for public services in
Scotland that will be put to the Parliament for approval in the autumn of 2010.
The SPSO will be working with key interests (including the NHS) across 2010-
2011 to ensure that the agreed principles are adapted to best meet sector
specific needs and circumstances. This provides an ideal opportunity for the
additional considerations covered in this chapter to be effectively addressed in
a consistent and coherent way.

A „Joined-up‟ System?

6.22 We acknowledge that while the complaints process, adverse incident
reporting and learning are not strictly speaking essential elements of a
compensation scheme as such, there was agreed to be a need to be careful
about these processes and ensure more „joined up‟ thinking. The group


                                      53
identified the need to separate learning from disciplinary processes and the
need to share outcomes to prevent further incidents occurring. We also
agreed that any recommended system should include drivers to maintain
standards and protect the public. It is important to keep the patient
perspective in view and to reassure the public that poor practice is being
addressed efficiently and effectively. There is, we believe, an opportunity to
provide a better, more consistent, system for dealing with complaints which
could both complement and supplement whatever system of liability is in
place.

6.23 Discipline was also a real and current issue. Open, early and accurate
disclosure could reassure medical and healthcare staff that their jobs and
reputations were not at risk. We acknowledge that healthcare staff work within
a system, and that in some instances the fault might not lie with the individual
but rather with problems inherent in the system itself. We consider that
investigation of an incident, and learning from it, are and should be separate
from disciplinary procedures and that each system should be designed to
operate in a way that does not inhibit in any way the aims of the other.
Openness and robust investigative mechanisms within the delivery system of
healthcare services seem likely to meet the needs for systems to learn, while
avoiding unnecessary stigmatisation of individual personnel.

Conclusion

6.24 Although technically beyond the terms of our remit, members of the
group felt strongly that parallel amendments, such as those mentioned above,
could contribute to overall improvements to patient experiences, as well as
improving relationships between healthcare professionals and patients.




                                       54
Chapter 7

Conclusions and recommendations

7.1 From our discussions and the evidence we have gathered, it seems
clear that the current system is not meeting the needs of patients, and
potentially creates an atmosphere of tension between them and their
healthcare providers. In addition, the widely accepted view that patients are
more interested in a meaningful apology, an explanation and assurances
about future practice was reinforced by the research team‟s findings. The
current system of litigation may result (in a small number of cases) in the
award of financial compensation, but it clearly cannot – and does not purport
to – address these issues.

7.2    The number of claims paid out in Scotland is low relative to the rest of
the UK and other jurisdictions but claim costs have been increasing in recent
years. However, in addition to the costs of settled claims, Central Legal Office
(CLO) incurs costs and outlays in claims that are not settled. On some
occasions, NHS Health Boards will make a payment to the claimant for fees
incurred by the claimant even where the claim is not settled. The total of the
costs for unsettled claims has risen over the years from around £300,000 to
over £1M. The researchers‟ survey of costs indicates clearly that significant
costs are incurred for unsettled claims and that the costs associated with
small claims have been rising and currently can be greater than the awards
made.

7.3 The nature of the proposed scheme itself suggests that administrative
costs will likely be lower than the costs associated with litigation. It is, of
course, the case that if the right to litigate is not fully removed some injured
patients may prefer to use the existing system; these costs will remain in
these cases. However, based on the evidence we have received as to what
patients actually want to achieve, it seems likely to us that fewer people than
at present will resort to litigation.

7.4    The research team has provided a paper which suggests on the basis
of assumptions made that the proposed scheme will not lead to expenditure
greatly above that of the existing scheme. The paper assumes a 20%
increase in claims under the proposed scheme and that 40% of the claims
which fail under the litigation system would receive an award under the
proposed „no-fault‟ scheme. It also assumes that the additional claims will be
low value claims. Further analysis may be necessary to test the validity of
these assumptions as a previous analysis for Lord Ross‟ report in 2003 and
the Making Amends report of the Chief Medical Officer in England (also in
2003) assumed an 80% increase in claims.

7.5    The concept of no fault is not entirely foreign in UK law, and in our
report we briefly explore some of the schemes that currently operate on this
basis. These have, however, been reserved for relatively narrow purposes
and a large number of personal injury claims still require to be raised using
the current medical negligence framework.


                                      55
7.6 We explored several well-established no fault schemes in other
jurisdictions with a particular focus on the New Zealand and Swedish models.
Although these two schemes differ in funding basis, extent and process, each
has as its goals the facilitation of access to justice, the provision of adequate
compensation for injured patients and appropriate adjudication of claims –
goals which the review group believes should inform the system of
compensation in Scotland.

7.7    In addition, the emphasis, particularly in the New Zealand Scheme, on
rehabilitation, as well as financial compensation to meet needs, was
welcomed by the group. If the aim is to restore people to the position they
would have been in but for the injury, this may be achievable by the provision
of non-financial support in addition to any financial compensation deemed to
be appropriate to the circumstances. Investment in this area would
supplement existing provisions, thereby also benefiting healthcare provision in
general and the NHS as a whole.

7.8     While we appreciate that this is not unproblematic, the principles we
identified should, we believe, apply to all medical injury and not simply those
that arise in the NHS. The rationale for this is clear; if there are benefits to be
obtained from the no fault approach, these should be extended to all people
injured as a result of healthcare provision (or non-provision). However, some
members of the group believe that this may prove to be difficult in respect of
independent contractors and private practice. If including these groups in the
no fault scheme proves impossible, we would nonetheless support its
introduction in the NHS. We nonetheless repeat our preference that the no
fault scheme applies to all patients.

7.9      We are satisfied that a no fault scheme as we describe it would be fully
compatible with human rights requirements, based in particular on the need –
as in Sweden and New Zealand – to build in appropriate appeals
mechanisms, with an ultimate right to appeal to the courts on a point of fact or
law. In addition, retention of the right to litigate will ensure that those for
whom the no fault system is felt to be inappropriate will still be able to raise
claims using this route. However, in light of our criticisms of the current
litigation system in medical cases, consideration of the amendments we
suggest would be important.

7.10 While even no fault schemes require eligibility criteria to be met, the
lack of a need to establish fault will make the scheme more open to injured
patients. However, these criteria need to be clearly described; from our
perspective this can best be done by describing those injuries that will not be
eligible under the scheme - for example known and consented to risks of
treatment.




                                        56
7.11 We therefore offer the following recommendations for consideration:

      Recommendation 1.

      We recommend 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; (it should be
      noted that the welfare and social care systems in Sweden are
      highly developed and more inclusive than the current UK situation
      and are paid for by taxation, which is higher than in the UK.)

      Recommendation 2.

      We recommend 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;

      Recommendation 3.

      We recommend 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);

      Recommendation 4.

      We recommend that the scheme should extend to all registered
      healthcare professionals in Scotland, and not simply to those
      employed by NHSScotland;

      Recommendation 5.

      We recommend that any compensation awarded should be based
      on need rather than on a tariff based system;

      Recommendation 6.

      We recommend that claimants who fail under the no fault scheme
      should retain the right to litigate, based on an improved litigation
      system;

      Recommendation 7.

      We recommend that a claimant who fails in litigation should have
      a residual right to claim under the no fault scheme;




                                     57
Recommendation 8.

We recommend 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;

Recommendation 9.

We recommend 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.

Recommendation 10.

We recommend that consideration should be given to our
analysis of the problems in the current system, so that those
who decide to litigate can benefit from them.




                             58
                                                                 Appendix A


  Chair: Professor Sheila McLean, School of Law, Glasgow University

Name                           Representing
Dr Paul Allan                  Scottish Academy of Medical Royal Colleges
Dr Ian Bashford                NHS Medical Director, representing the
                               Scottish Association of Medical Directors
Hazel Borland                  NHS Patient Focus and Public Involvement
                               Director
Steve Carney                   Scottish Public Services Ombudsman
Jim Rodger                     Medical and Dental Defence Union of Scotland
Frances Elliot                 NHS Chief Executive
Michael Fuller                 NHS Staff Partnership Forum
Kelly Johnson (replaced        Health Professions Council
Michael Guthrie Nov 2010)
Dr Robert Hendry                  Medical Protection Society
Andrew Lamb                       British Dental Association Scotland
Ann Logan (replaced               Law Society
Fred Tyler Dec 2009)
Liz Macdonald                     Consumer Focus Scotland
Geraldine Macdonald               Patient Representative
Ranald Macdonald                  Central Legal Office
Ken Mackinnon (Jan 2010)          Academic - Robert Gordon University
Clare Mayo (replaced              Royal College of Nursing Scotland
Rebekah Male Jan 2010)
Christina McKenzie                Nursing and Midwifery Council
Professor Kenneth Norrie          Academic – Strathclyde University
Paul Philip                       General Medical Council
Andrew Pollock                    Pursuer Solicitor
Gillian Smith                     Royal College of Midwives
Dr Hugh Stewart                   Medical Defence Union
Lauren Sutherland                 Advocate
Peter Terry                       British Medical Association
Angela Timoney                    Royal Pharmaceutical Society
Peter Walsh                       Action against Medical Accidents
Margaret Watt                     Scotland Patients Association
   Scottish Government support:
   Andrew MacLeod – Head of Patient and Quality Division (retired March 2010)
   Fiona Montgomery – Patient and Quality Division
   Sandra Watson – Senior Medical Advisor (left Jan 2010)
   Alastair Pringle – Equality and Diversity Manager
   Paul Allen – Civil Law Division
   Sandy Kinnear – Health Finance (retired June 2010)
   Edythe Murie - Legal Directorate
   Sandra Falconer – Patient and Quality Division

  Research Team
  A research team led by Professor Frank Stephen, Manchester University, was
  appointed in November 2009



                                      59
                                                                   Appendix B


A Limited No Fault Scheme

1.     Finally, we also considered whether or not the establishment of a
scheme specific to neurologically impaired infants should be created (in the
event that a general no-fault scheme is not introduced). This group of
patients arguably represents a special case and certainly accounts for the
most significant sums awarded in compensation and legal costs. Although
this was discussed and discounted in England, we believe it to be worthy of
consideration here and what follows provides an outline of a possible
approach in which the future care component of any compensation would be
provided in the form of a guarantee of delivery of services (both medical and
social care) to meet the needs of the child, instead of by way of a monetary
sum.

2.     The amount paid out by Health Boards in damages has risen by more
than 200% over the past four years (05/06 to 08/09) although the number of
claims has remained relatively stable (lower in 08/09 than in the previous
three years). A major contributor to the damages paid out is the small number
of claims that involve catastrophic injury, and a significant proportion of such
claims are likely to be in relation to babies born with severe neurological
impairment. At present, only those children who can establish that they have
suffered an injury as the result of negligence can recover damages, which will
cover all losses past and future (so far as money can assist in this) caused by
the negligence. In cases where damages are recoverable, the Law Reform
(Personal Injuries) Act 1948 provides that „there shall be disregarded, in
determining the reasonableness of any expenses, the possibility of avoiding
those expenses or part of them by taking advantage of facilities available
under the ….National Health Service (Scotland) Act…‟ This provision means
that NHS money used to compensate these injured children for their care
needs must be paid from NHS funds and it flows out of the NHS into the
private sector. Large awards can reach £5-6 million and higher in Scotland.

3. Children who suffer non-negligent birth injury in the course of their
medical care, receive no compensation, yet their care needs are essentially
the same as children who have been negligently injured (as indeed are the
care needs of children with congenital abnormalities which lead to severe
disability at birth who also do not qualify for compensation).

4.    If a no fault scheme incorporating rehabilitation and ongoing support
were to be instituted for neurologically impaired infants, then the future care
component could be met by a guarantee that the child‟s ongoing medical and
care needs would be met by the state (initially, this is likely to involve
commissioning much of that care from the private sector, but, over time, the
cost savings available - and economies of scale for less remote parts of NHS
Scotland - should encourage provision by the NHS itself, with increased
provision of medical and care needs for severely neurologically impaired
children becoming available.) A much larger group of children would therefore
receive compensation under a no fault scheme than at present given that, by
its nature, a no fault scheme would extend compensation to those children



                                       60
                                                                      Appendix B


where there is no suggestion that negligence has occurred (or who are unable
to prove negligence) but whose injuries are traced to their medical care.

5.      Children whose problems are not attributable to their medical care, for
example, those with a genetic condition or an acquired condition, are unlikely
to be included in a no fault scheme (based on the existing schemes studied
by the group). This matter greatly concerned the group. It may be, however,
that, even if this group of children continues to be excluded from
compensation under any proposed scheme, there would be some „collateral‟
benefit to them resulting from the retention of funds within the NHS, and a
resultant improvement in the overall NHS provision of medical and other care
for children with severe neurological injuries: in other words, more facilities
should be available in general as a result of the investment in care facilities
that would be feasible were future care needs met by healthcare provision
rather than simple financial awards. In an ideal world, all children with
substantial care needs, no matter what the cause, should receive all of the
care they need from the NHS.

6.       The possible benefits of this approach would be that:

        More children would obtain compensation, because of the removal of
         the requirement to prove fault;
        Compensation could be awarded much more quickly, because:
         a. There is no need to prove fault;
         b. Care needs would be met by a guarantee of ongoing care provision
            by the state, obviating the need to wait until the child‟s needs are
            fully established (which may be a matter of ten years or more) to
            avoid under-compensation;
         c. The award could be made by administrative means or tribunal,
            rather than following an adversarial process;
         d. Money currently leaving the NHS would be retained in the system,
            thus improving NHS resources overall;
         e. There may be a considerable saving in legal fees.

7.      The interaction of any such proposed scheme with a residual right to
litigate was not considered by the group in detail. However, the presence or
absence of the right to litigate, and whether that right would continue the 1948
provision in relation to disregarding the availability of facilities provided by the
state (with a no fault scheme with care guarantees in existence) would clearly
have significant implications, including in relation to the likely take-up of the
scheme. The group was strongly of the view that should such a scheme be
adopted a residual right to litigate should remain.




                                        61
                                                                       Appendix C


LIST OF EVIDENCE CONSIDERED

Accident Compensation Corporation (ACC) New Zealand – (video
conference) 27 January 2010

ACC moves to curtail rise in physiotherapy costs – (Article from British High
Commission in New Zealand Health Bulletin) November 2009

An “Avoidability Test” – (A discussion paper by Peter Walsh, AvMA)) 18
March 2010

Causation and Practical Issues Arising – (A background summary briefing
prepared by Andrew Pollock, Pursuer Solicitor) 10 November 2009

The Checklist Manifesto: How to get things right – (a book by Atul Gawande
outlining measures to improve the quality and reliability of patient care
http://www.amazon.co.uk/Checklist-Manifesto-How-things-
right/dp/1846683130/ref=sr_1_1?ie=UTF8&s=books&qid=1265819604&sr=8-
1

Civil Court Review (http://www.scotcourts.gov.uk/civilcourtsreview/index.asp)
– (Report by Lord Gill) September 2009

Civil Court Review – (Presentation– Colin McKay, SG, Legal System Division)
28 January 2010

Clinical Negligence and Other Risks Indemnity Scheme (CNORIS), risk
management standards -
(http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&PageN
umber=1&NavFrom=3&activeTextDocId=3451351&parentActiveTextDocId=3
451351&showAllAttributes=1&showProsp=0&suppressWarning=0&hideCom
mentary=1) - (Regulations by Nicola Sturgeon, Cabinet Secretary for Health
and Wellbeing) February 2008

Coalition Government Programme –
(http://www.cabinetoffice.gov.uk/media/409088/pfg_coalition.pdf)

A Code of Health and Disability Services Consumers‟ Rights –
(http://www.hdc.org.nz/the-act--code/the-code-of-rights) - (A publication by the
New Zealand Health and Disability Commissioner) 15 April 2010

Comments on „no-fault compensation‟/consideration of different types of
administrative alternatives to litigation/alternative tests of „fault‟ – (Discussion
paper by Peter Walsh, AvMA) September 2009

Complaints, Claims and Apologies – (discussion paper by Scottish Public
Services Ombudsman) December 2009

Cross Boundary Issues – (A discussion paper by Peter Terry, BMA) 4 June
2010


                                         62
                                                                 Appendix C



Determining Eligibility for Compensation & Case Studies in Sweden – (a
paper by Dr Anne Maree Farrell, Manchester University) 18 March 2010

Empirical study of medical negligence claiming in Scotland – (report by
Manchester University research team) October 2010

English NHS Redress Act 2006 –
(http://www.legislation.gov.uk/ukpga/2006/44/contents)

European Convention of Human Rights -
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-
5C9014916D7A/0/ENG_CONV.pdf

“The Future of Negligence” – (a paper by Professor John Smillie) 15 April
2010

GMC Guidance of „Good Medical Practice‟ –
(http://www.gmc-uk.org/static/documents/content/GMP_0910.pdf

Greater Focus on Patient Safety –
(http://www.beehive.govt.nz/release/greater+focus+patient+safety) - (article
on New Zealand proposals for new, stand alone, clinically led government
agency to lift quality and safety in frontline health services) February 2010

Harms included/not included in current system – (Discussion paper prepared
by Andrew Pollock, Pursuer Solicitor) 4 June 2010

The “Hunter V Hanley” Liability Test & Practical Issues Arising – (A
background summary briefing prepared by Andrew Pollock, Pursuer Solicitor)
13 October 2009

Hypothetical case studies tested against Swedish model – (information on
results of case studies) March 2010

Improvements to existing system – (discussion paper by Andrew Pollock,
Pursuer Solicitor) October 2010

Injury Prevention, Rehabilitation, and Compensation Amendment Bill 90-1
(2009) –
(http://www.legislation.govt.nz/bill/government/2009/0090/latest/DLM241750)
tabled by New Zealand Government passed as the Accident Compensation
Amendment Act 2010 on 3 March 2010

Limited No Fault Scheme for neurologically impaired infants – (Discussion
paper by Hugh Stewart, MDU) September 2010

Literature review – No Fault Compensation Schemes For Medical Injury: A
Review – (Interim report by Dr Anne Maree Farrell, Ms Sarah Devaney and
Ms Amber Dar, Manchester University) 28 January 2010


                                      63
                                                                     Appendix C




Making amends: a consultation paper setting out proposals for reforming the
approach to clinical negligence in the NHS -A report by the Chief Medical
Officer
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/Publicati
onsPolicyAndGuidance/DH_4010641

Medical Negligence Claims, Legal Processes in Scotland and England –
(Discussion paper prepared by Prof G C A Dickson, CEO, MDDUS) 17
September 2009

Medical Negligence Claims, The Scottish System – (Discussion paper by
Lauren Sutherland, Advocate) 17 September 2009

NHS Complaints Procedure – Can I help You? -
http://www.show.scot.nhs.uk/publications/me/complaints/docs/1guidance0104
05.pdf

NHS Litigation Authority (NHSLA) – (Factsheets)
(http://www.nhsla.com/Publications/)

NHS QIS Proposals for a national framework for incidents reporting and
learning (a discussion paper prepared by Frances Elliot, NHS Chief
Executive, outlining the work currently being undertaken by NHS QIS)

New Zealand Reform Bill – (http://www.parliament.nz/en-
NZ/PB/Legislation/Bills/b/6/b/00DBHOH_BILL9729_1-Local-Government-
Auckland-Law-Reform-Bill.htm) December 2009

“No Fault” Liability and Human Rights – (Paper by Professor Jim Murdoch,
University of Glasgow) 16 December 2009

Patients‟ Complaints System in New Zealand
(http://content.healthaffairs.org/cgi/reprint/21/3/70.pdf) - (A publication by Ron
Paterson) 15 April 2010

Patient Rights(Scotland) Bill (http://www.scottish.parliament.uk/s3/bills/42-
PatientRights/index.htm)

Patient Safety House of Commons Select Committee report
http://www.publications.parliament.uk/pa/cm200809/cmselect/cmhealth/151/1
5102.htm

Personal Injury Cases Data – (information paper from SG Justice Directorate)
March 2010

Possible changes to and within Existing Framework / System – (A discussion
paper by Andrew Pollock, Pursuer Solicitor)15 July 2010



                                        64
                                                                  Appendix C


Possible Human Rights implications of the introduction of a “no-fault”
compensation scheme in cases of medical harm – (Two papers by Professor
Jim Murdoch, Glasgow University) 13 May 2010

“Putting Things Right” – (A discussion paper by Peter Walsh, AvMA, on the
Welsh Assembly Government proposals fro Welsh Redress Scheme) 18
March 2010

Reforms to the Health Complaints System in Scotland – (A background
summary briefing prepared by Steve Carney, SPSO) 16 December 2009

The Report of the Expert Group on Financial and Other Support in 2003 (Lord
Ross‟ report) –
(http://www.scotland.gov.uk/Resource/Doc/47034/0024918.pdf)

Research Paper – (Short report presenting interim results of interviews with
clinical negligence pursuers in Scotland) 4 June 2010

Role of the Health and Disability Rights Commissioner, New Zealand –
(presentation by Ron Paterson former Commissioner) June 2010

Scottish Government Justice Directorate Response Paper – (A response
paper by Andrew P Mackenzie, SG, Legal System Division to paper‟s “Legal
Processes in Scotland” and England and “Scottish System”) 16 December
2009

Scottish Legal Aid Board (SLAB) – (Response to review Group questions on
Clinical/Medical Negligence cases) 16 December 2009

Single Gateway – (Scottish Consumer Council response to SNP consultation)
November 2009

Swedish Pharmaceutical Injuries Scheme – (Paper by Dr Anne Maree Farrell)
April 2010

The Swedish Scheme – (a video Conference with Kaj Essinger, Senior
Advisor, Swedish Medical Injury Insurance) August 2010

The Swedish Scheme – (Question & Answer Paper by Dr Anne Maree Farrell)
April 2010

The Swedish System for Compensation of Patient Injuries
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2853784 – Article in the Upsala
Journal of Medical Sciences by Professor Johansson, Medical Expert
Swedish Claims Panel.

Thoughts on No–fault Compensation – (Scottish Patient Association,
discussion paper) September 2009




                                      65
                                                          Appendix C


Vaccine Damage Payment Scheme – (Discussion paper prepared by Kenneth
Norrie, Strathclyde University) 10 November 2009




                                 66
                                                                    Appendix D


DEFINITIONS

We have set down below some broad definitions for certain words or phrases
referred to in this Report in order to set the context for some of our
considerations.

Avoidability Test – tests to establish whether the harm would have been
avoided by the use of „best‟ practice.

Adverse costs - A court order requiring a party to court proceedings to pay
the other party or parties‟ costs in relation to court proceedings.

Causation - As well as proving breach of duty, a pursuer must also prove that
the breach of duty caused the loss or harm complained of, or at least
materially contributed to it.

Compensation - Compensation is a wider term than damages, and covers
the provision of something to the injured person (or the injured person's
dependants in the case of death) in consequence of the injury or harm, and
for the purpose of removing or alleviating its ill effects.

Damages - Damages are a sum of money paid as compensation for loss,
injury or damage resulting from an act or omission of the defender which is in
breach of a duty owed.

Experienced specialist rule – This rule considers whether injuries could
have been avoided under optimal circumstances, in that the injury would not
have occurred in the hands of the best health practitioner or health system.

Harm – this may include flawed or inadequate consent; affront/outrage;
breach of confidentiality; pain and suffering caused through unnecessary
Treatment; loss of a probability of a cure/successful treatment.

Injury - Physical injury (an incident or condition causing physical pain will, in
general, be regarded as injury e.g. Inadequate anaesthetisation), psychiatric
injury as confirmed by a Consultant Psychiatrist or Consultant Psychologist;
wrongful birth (a mother who gives birth following a failed sterilisation to an
otherwise healthy baby will be awarded damages for the pain and suffering of
the childbirth even although medically, this might not be regarded as “injury”).

Medical Error - is "the failure of a registered health professional to observe a
standard of care and skill reasonably to be expected in the circumstances".
This, by definition, requires proof equivalent to that of proving negligence;
that is malpractice, in the same way as a medical malpractice claim under
delict law. Non-negligent errors constitute medical misadventure only if they
fall within the definition of 'medical mishap'.




                                       67
                                                                   Appendix D


Medical Mishap - is very narrowly defined and is, therefore, highly restrictive
in its application. It is defined as an "adverse consequence of treatment when,
(a) the treatment given to a claimant, is given properly, and is given by or at
the direction of a registered health professional; and (b) the adverse
consequence is suffered by the claimant; and (c) the adverse consequence is
'severe'; and (d) the likelihood that treatment of the kind that was given would
have the adverse consequence is 'rare'.

NHS Indemnity - NHS bodies are legally liable for the negligent acts and
omissions of their employees or agents in terms of the principle of vicarious
liability, and should have arrangements for meeting this liability. NHS
Indemnity applies to staff in the course of their NHS employment, as well
as GPs or dentists, who are directly employed by Health Boards. It also
covers people in certain other categories whenever the NHS body owes a
duty of care to the person harmed, including, for example, locums, medical
academic staff with honorary contracts, students, those conducting clinical
trials on NHS patients, volunteers and people undergoing further professional
education, training and examinations. NHS Indemnity does not apply to
general medical and dental practitioners (or their employees) working as
independent contractors under contract for services. General practitioners are
responsible for making their own indemnity/insurance arrangements, as are
other self-employed health care professionals such as chiropodists and
independent midwives. NHS Indemnity does not apply to employees of private
hospitals (even when treating NHS patients) local education authorities or
voluntary agencies.

Negligence – failure to exercise a duty required by law to show reasonable
care, when doing or omitting to do something, in order to avoid loss or harm to
others. It is not always medical practitioners who cause or contribute to injury
– nurses, clinical support staff, laboratory staff, blood transfusion staff,
pathology staff, administrative support staff may also contribute to injury.

No-fault compensation - we use this to refer to compensation which is
obtained without the need to proceed against the person responsible for the
harm.

Non-pecuniary damages - compensate for pain and suffering, disability and
disfigurement, and inconvenience.

Pecuniary damages - cover loss of income and medical expenses incurred
as a result of the injury, but not covered by other insurance.

Professional Negligence - A medical practitioner, like others exercising
professional skills, must display and apply reasonable care and a reasonable
standard of professional competence in order to avoid loss or harm to others.
There is no automatic liability for accidents, and the test often depends on
what is usual and normal practice. Deviation from usual and normal practice is
negligence only if the course of action adopted is one which no professional
man of ordinary skill would have taken if they had been acting with ordinary
care. (Hunter v Hanley 1955 SC 200) However, the practice relied on must


                                      68
                                                                         Appendix D


have been accepted by a responsible body of medical experts skilled in the
field, their opinion must have had a logical basis, and the experts must have
applied their minds to the comparative risks and benefits. (Bolitho v City and
Hackney Health Authority 1998 AC 232)

Provisional Damages - Provisional damages for personal injuries may be
awarded where there is admitted or proved to be a chance that at some
definite or indefinite time in the future, the injured person will, as a result of the
act or omission which gave rise to the cause of action, develop some serious
disease or suffer some serious deterioration in their physical or mental
condition. In such circumstances, provisional damages are assessed on the
assumption that the injured person will not develop some serious disease or
suffer some serious deterioration in their condition. Future damages may then
be awarded if they do develop the disease or suffer the deterioration.

Redress – this may include investigations when things go wrong, remedial
treatment, rehabilitation and care when needed; explanations and apologies;
and financial compensation in certain circumstances.

Standard of Proof - In civil actions, apart from exceptional cases, the onus of
proof is on the pursuer, and the onus may be discharged on a balance of
probabilities.

Statutory Liability - Statutes may impose a standard more exacting than that
of taking reasonable care. A statute may impose absolute liability,
independently of negligence, and the defender will be liable, even if they have
taken all reasonable care to prevent the harm complained of, provided it is
proved that there was a breach of the statutory duty, and that the breach
caused the harm.

Total compensation - intended to put the injured party as nearly as may be
in as good a position as they were in before the loss occurred", rather than
just damages.

Treatment – includes the giving of treatment; diagnosis of a medical
condition; a decision to treat or not to treat; a failure to treat or treat in a timely
manner; obtaining or failing to obtain informed consent to treatment; the
provision of prophylaxis; application of any support systems including policies,
processes, practices and administrative systems which are used by the
treatment provider and directly support the treatment. It also includes failure of
equipment, devices or tools which are used as part of the treatment process,
whether at the time of treatment or subsequently. Failure of implants and
prostheses are included, except where the injury is caused by general wear
and tear.




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