No-blame redress: a blueprint?

Putting words like “no-fault”, “compensation” and “medical injury” into the same sentence is a tricky business. The challenges that arise in balancing access to justice whilst maintaining an affordable no-fault scheme are widely recognised. The Scottish Government recently published draft proposals for a “No-blame Redress Scheme in Scotland for Harm Resulting from Clinical Treatment”. This article reviews the background and reflects on existing schemes operating in other jurisdictions.

Evolution of the proposed scheme

The proposal aims to enhance patient rights and encourage transparency in the healthcare process. It will take a “holistic restorative” approach, which includes making an apology and learning from the medical mishap to inform future practice. Whilst it has drawn on a mixture of previous reports and consultations, its framework is primarily taken from the work of the Scottish No-Fault Compensation Review Group, established in 2009 by the Scottish Government under Professor Sheila MacLean. In 2011 it produced a comprehensive, ambitious set of principles and recommendations which the Government acknowledged may not all be achievable.

For example, despite its recommendations, the proposal will not cover treatment received from “independent contractors”, therefore excluding GPs, dentists, opticians and pharmacists. Excluding such a large segment of healthcare providers may result in many people not qualifying to make a claim. Further, there would be a duality of process, with the potential for a double standard and imbalance in compensation awarded.

Comparative approaches

Looking to other no-fault models provides useful comparisons and invaluable information as to how other states have approached, and importantly sustained, such a scheme. Longer term data can be gained from New Zealand’s no-fault Accident Compensation Scheme, established in 1974, and newer models such as the one currently operating in Sweden. Within the UK, there is the (so far unused) NHS Redress Act 2006 and, most recently, the National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) Regulations 2011.

The Scottish proposals, to an extent, reflect the Swedish model. However, applying one model in its entirety is unlikely to work without taking into account the culture, traditions and nature of health service provision in Scotland. Other factors such as size of population and social security provision will heavily influence the success of any scheme.

Within the countries that have a no-fault liability scheme, there is considerable variation in the eligibility criteria. The Scottish proposal acknowledges the challenges in setting the parameters to define exactly what may or may not be compensatable, and uses the notion of “avoidability”. This means that, all other things being equal, a patient/claimant has sustained an injury which could have been “avoided”. This is wider, or certainly less restrictive, than with the current Welsh model and also the NHS Redress Act 2006, where patients would only be eligible for compensation if they were able to establish a “qualifying liability in tort”.

The concept of “blame”

At a time when various initiatives are being used to encourage an atmosphere of openness and accountability within the healthcare professions, a scheme whose title starts with “No-blame” may not be helpful. “Blame” is an emotive word. Whilst it is recognised that, on occasions, it may be merited, civil law traditions lead from the premise of a duty of care, which includes the duties of the healthcare professional. Post the review group’s conclusions, these duties are increasing and what may have previously been seen as an ethical duty now has a statutory footing.

For example, a duty of candour is now recognised in the Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016, which places new responsibilities on healthcare professionals and organisations to disclose information regarding potential harms and provide an apology. It is right that any proposed scheme should “place the patient at the centre”, as this one bears to, but it should also ensure that it does not inadvertently place more pressure on healthcare staff and increase the blame culture within the NHS.

Concluding thoughts

One helpful question to pose of any proposed scheme is whether it promotes access to justice. This will depend on the transparency, and ease for claimants to understand the scheme. It is generally agreed that minor injuries or low value claims may often result in a positive resolution, but medical injuries by their nature are often more complex due to the necessity to prove causation. There is evidence from other jurisdictions which suggests that some individuals who may be eligible to claim, fail to do so. This may be addressed by applying a lead time which would allow for advance publicity and education of any new scheme. Also, the availability of robust and independent counselling from the outset of a claimant’s enquiry may help some of the problems seen elsewhere.

It is a challenge to ensure that any legislation provides for a process that captures access to legal advice and representation from the outset of a person’s claim, but the success of, confidence in and acceptance of any scheme depend on getting this right.