Scotland’s Proposed No-Fault NHS Compensation For Medical Negligence Claims

January 5, 2023

Many jurisdiction around the world are battling with the difficult issue of medical negligence, also known as medical malpractice, which places a huge financial burden on the relevant medical authority and it’s argued that such civil claim are a drain on very limited and scarce resources.

Scotland is currently looking at reforming its compensation system in respect of claims against the NHS in Scotland. It is currently looking at no fault systems of redress to replace the existing adversarial litigation process i.e. fault-based system of dispensing compensation. It would seem that it presently favours a system of no-fault compensation as is used in Sweden.

It seems that the Scottish Government has accepted the recommendation of a review group headed by Sheila McLean, a renowned law and medical ethics expert, which has been looking at reforming the law since around 2008.

What is No-Fault Compensation

At present if someone suffers injury or harm due to medical negligence, they must go through a long and complex process of seeking to prove that the injury that they have suffered is a result of fault or negligence caused by the hospital.

A no-fault compensation system removes the need to have to prove that the hospital was at fault in its administration of care and treatment to a patient that suffers harm. The injured victim only has to show that the harm complained about is a result of the act or omission of the hospital but the injured party would not have to prove that there was negligence by the hospital.

Martin Woodrow, Scottish Secretary to the BMA stated:

“The BMA believes that no-fault compensation offers a less adversarial system of resolving the process for compensating patients for clinical errors. A system of no fault compensation with maximum financial limits would benefit both doctors and patients, speeding up the process and reducing the legal expenses incurred by the current system. More importantly NHS Medical Keyboards, however, it would address the blame culture within the NHS which discourages doctors from reporting accidents and would end the practice of defensive medicine.”

In its review of no-fault compensation for the NHS, the Scottish Government clearly stated that its aim in reforming the NHS compensation system was to ensure a better allocation of finite resources. It felt that this could be achieved by speeding up the process of compensation, freeing up valuable time and expense, as a result of being locked into litigation that can take several years, and more importantly retain valuable financial resources within the NHS rather than having to pay out in expensive legal costs. It believes that the money that it can save in legal costs can then be directed at learning and improving its patient care.

The Benefits of No-Fault Compensation System

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

1. More people would obtain compensation, because of the removal of the requirement to prove fault;

2. 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 through the courts of law;


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