Remit - DOC by hcj


									No-fault Compensation Review Group                                 MRG Paper 6

Following the useful and wide-ranging discussion at the last meeting, it is
important that we now focus on the specific remit of the Working Group. For
this reason, I have put this short paper together which I hope will assist in our
deliberations. Just to remind us, the remit of the Group is as follows:

“To consider the potential benefits for patients in Scotland of a no-fault
compensation scheme for injuries as a result of 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
      The wider implications for the system of justice and personal injury
       liability; and
      The evidence on how no-fault compensation has operated in other

To make recommendations on the key principles and design criteria that could
be adopted for a no-fault compensation scheme.”

With this in mind, we identified four options for the Review Group:
    recommend a no-fault system to run alongside the existing system;
    recommend a no fault system and abandon the existing system;
    simply retain the existing system in its present form; or
    recommend retaining existing scheme with possible improvements.

Principled Questions

I am also including below the principled questions that were identified:

      What should a compensation system be trying to achieve?
      What are the potential benefits/drawbacks of the current system?
      What are the potential benefits/drawbacks of a no fault system?
      Why and on what basis 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 they really want?
      How could a no fault scheme take account of situations where under
       the current scheme awards would be significant – for example, in the
       case of birth injuries?
      Are there any human rights implications of removing the possibility of
       litigation? What are the implications of the answer to this question?
      What would be the preferred basis for the funding of any no fault
       system introduced?

Members also reflected on what might be meant by „compensation‟, and
raised issues about professional regulation and the ability to learn from
experience. However, I think that we need to be clear as to what we can deal
with in our report.
No-fault Compensation Review Group                                 MRG Paper 6

We are specifically asked to consider whether or not there would be benefits
in changing the current fault-based system (see Kenneth Norrie‟s paper) to
one based on no fault. This limits the scope of our considerations to the
system itself, even although we have agreed that other issues are also
important, such as what patients actually want (for example, an apology) and
questions about professional self-regulation. We must, therefore, ensure that
the final report confines itself, in terms of recommendations, to the terms of
the remit and what the current (or revised) system can achieve. For this
reason, I am not sure on reflection that we need to consider bullet point 5
directly. This does not, however, in my opinion, prevent us from making
general comments about what the present (or revised) system cannot
achieve – this seems to me to be integral to the likely impact and/or benefits
of whatever system we ultimately favour and relevant therefore to our
recommendations and to how they might be implemented. It may also
provide the impetus for further non-legal developments to improve the wider
situation for patients and healthcare professionals, and possibly the NHS as a

It is 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
(the paper being prepared by our „volunteers‟ will be immensely helpful here).
If, as is not implausible, we are able to identify benefits in both systems, we
will also need to be entirely transparent about why (if at all) we believe one on
balance to be preferable to the other. This may require some ranking of
benefits and drawbacks as the picture becomes more clear.

There are, of course, a number of interests at stake – for example, patients,
healthcare professionals, the NHS itself – and we are fortunate to have
representatives from all of the interested parties on the Working Group. As
members kindly agreed at the last meeting, one useful strategy might be to
use that expertise proactively. While the researcher, once appointed, will be
able to address a wide range of questions, the unique expertise of members
of the group could usefully inform both our discussions and the final report,
and I would suggest that we continue the process we have already begun of
commissioning discrete and reasonably concise papers from members of the
Working Group. It would be helpful, therefore, if people could consider in
advance of the next meeting in which area or areas they feel they could make
such a contribution. One way forward might be for individuals/groups to
agree to tackle one of the principled questions – specifically bullet points 1, 2,
4, 6 and 7. Arguably, we would need more information from the researcher
to answer the remaining bullet points and providing this is likely to be a major
component of his or her initial work.

Sheila McLean

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