A Fair Compensation Scheme
AvMA recommend that the State should provide for an alternative means of compensating patients or families injured as a result of sub-standard healthcare, as an alternative to taking legal action through the courts. Legal action of this type is notoriously difficult for individuals to pursue, is costly both to individuals and the State, and focuses attention mainly on individual negligence and money. It adds to the perception of ‘blame culture’ and does little to ensure lessons are learnt to improve safety. Some people use the term ‘no-fault compensation’ as shorthand for such an alternative administrative scheme. Examination of so-called ‘no-fault compensation’ schemes that exist around the world shows that the term is a misnomer and such schemes do rely on establishing fault and usually put an arbitrary limit on the compensation people receive, rather than provide the compensation they need and deserve. Instead, AvMA has developed proposals for an alternative scheme based on an ‘Avoidability Test’ which would be fairer, less focused on individual negligence or ‘blame’ and consistent with an ‘open and fair’ patient safety culture.
What is happening around the UK?
In England, the NHS Redress Act (2006) provides the statutory framework for an NHS Redress Scheme which might help fast-track settlement of lower monetary value claims without going to court. However, the opportunity to adopt a more radical approach, as suggested by the Chief Medical Officer in ‘Making Amends’ (Department of Health 2003), was missed. The scheme, (if indeed it ever goes ahead – nothing has been heard since the Act was passed), would still rely on the courts’ definition of negligence to determine eligibility for compensation, but would rely on the NHS being ‘judge and jury’ over itself.
In Wales, the NHS Redress Measure/”Putting things right” scheme has some significant advantages over the English proposals but is still limited to cases which meet the legal definition of negligence in tort.
In Scotland, there is currently consultation on “Patients’ Rights” which includes an invitation to comment on the idea of what the Scottish Government calls a ‘no-fault compensation’ scheme for Scotland. This is a wonderful opportunity to influence the development of an appropriate scheme for Scotland, which goes beyond the less ambitious efforts of England and Wales. AvMA is proposing an alternative scheme based around the notion of an ‘Avoidability Test’.
