Faculty reservations on “no-blame” compensation scheme

Faculty reservations on “no-blame” compensation scheme

The Faculty of Advocates has expressed reservations over a scheme to introduce “no blame” compensation for harm resulting from clinical treatment.

The Scottish government says it is committed to ending the “blame culture” that exists around claims for medical negligence and its draft proposals combine a new approach to dealing with compensation for avoidable harm (for claims up to £100,000) with improvements to the existing legal process.

The proposals would exclude more complex and higher value claims which would continue to be dealt with through the courts.

In its response to a Scottish government consultation paper the Faculty stresses that it shares the desire to ensure that people wrongly injured should receive “appropriate and efficient” redress.

The Faculty points out that delay in resolving civil disputes, including clinical negligence claims, is often due to the shortage of court resources and time.

“Any system of redress operating outside the court process would require to be structured and resourced so as to avoid reproducing delays that exist in the current system of redress. It should also be capable of dealing with the volume of claims brought.”

The Faculty says it is not clear how many claims would fall within the proposed scheme as both the least and most serious cases would be excluded from its ambit.

In its response the Faculty stresses that procedural reform in personal injury cases in the Court of Session has been extremely successful and that similar reforms have now been adopted in the Sheriff Court where claims for up to £100,000 must be heard.

“The Faculty is concerned that further reforms are being considered for claims arising from medical treatment before the new procedure for clinical negligence cases in the Sheriff Court has been given the opportunity to work and its effectiveness measured.”

It believes that the new procedure for clinical negligence cases in the Sheriff Court – including the early taking of statements, early exchange of essential information and expert evidence, the requirement for candour and the early focusing of areas of dispute – is likely to lead to greater openness, speedier and less costly settling of claims and a higher level of satisfaction with the litigation process.

“The Faculty remains of the view that the current system, with the improvements recently introduced, is a better means for compensating persons injured as a result of errors in diagnosis and treatment than the proposed scheme.”

It also notes that the combination of the requirement that a claimant suffer harm for a continuous period of at least six months and the financial cap (of £100,000) would operate to exclude from the proposed scheme both claimants with the least and the most serious injuries.

It is concerned that some claimants with legitimate claims worth more than £100,000 might be induced into making claims below that level to benefit from the proposed scheme, with the result that they would be under-compensated.

The Faculty also expresses concern that if the proposed scheme is administered by the Central Legal Office (in-house solicitors to the Scottish NHS) it might not be seen by patients as independent or impartial.

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