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No fault, no negligence, not happening

05 Mar 2021

With the suggestion of a move towards a no-fault compensation scheme once again on the agenda, will we now see changes that whilst previously mooted have not yet come to fruition?  

On Tuesday 2 February 2021 the Health and Social Care Committee met to discuss the safety of maternity services in England. However, perhaps the biggest takeaway was the revelation by Nadine Dorries, Minister of State for Patient Safety, Suicide Prevention and Mental Health that the government was looking “at how issues of no-blame, no-fault compensation and clinical negligence are treated, how they are dealt with, how we look at them and how we administer them”.

A no-fault compensation scheme, such as that in place in Sweden, has been suggested whereby patients are not required to prove clinical negligence, but merely have to show ‘avoidability’. Whether such a scheme would result in improved patient safety is not clear. It was acknowledged by the Minister that the evidence showing a correlation between Sweden’s no-fault compensation system and patient safety was “patchy” and “difficult to get a handle on”. New Zealand also operates a no-fault compensation scheme, which similarly has not been able to provide solid evidence of a consequential improvement in patient safety.

William Vineall, Director of NHS Quality, Safety and Investigations, Department of Health and Social Care commented on the apparent impetus for the government review, “we are committed to improve patient safety and tackle the rising costs of clinical negligence…Costs have quadrupled in 15 years from £0.6 billion to £2.3 billion”. As part of the review, Mr Vineall explained that the government was looking at the way in which systems for compensation payments were structured. This hints at a move towards a one-size fits all compensation scheme designed to reduce legal costs by limiting the need for legal input through a purported simplified and streamlined service.

This is not the first time proposals to reform the clinical negligence system have emerged, with the MDU and MPS pushing for reform in 2017 and the Department of Health putting forward their own proposals in 2004. Nevertheless, the comments made by the Health and Social Care Committee together with the recently published government white paper on NHS reform, which focuses on restructuring and recentralisation, suggests a renewed push for change.

 

Patient – LinkedIn

Paul Rumley, Chairman of the Society of Clinical Injury Lawyers (SCIL) expressed disappointment that reform discussions were taking place without the input of specialist groups such as SCIL. Mr Rumley stated “This approach gives the impression of not wanting to engage with the issues fully, which will result in foreseeable consequences such as continued lack of patient safety learning in the NHS, lack of access to true justice, and a knee-jerk protection of a taxpayer-funded system.”

Peter Walsh, chief executive of patient charity AvMA (Action against Medical Accidents) recently commented on the prospects of legal reform within the context of the goodwill generated towards the NHS during the pandemic. Mr Walsh noted ‘we know people are reluctant to claim… in that context the government may feel emboldened to go [beyond] fixed costs. There are a range of other threats to access to justice we see around the corner and even some extreme parts of the defendant side arguing for complete exemption from liability.”

The need for a continued focus on patient safety was also identified by Ms Dorries who stated, “You cannot amend or modify a system of clinical negligence or compensation without, hand in hand, having a robust system of patient safety. You cannot have one without the other. We need patient safety to be in a much better place than it is today”.

With the issue of no-fault compensation clearly back on the government’s agenda, it is hoped that the issue of patient safety remains the priority for all parties.