Faculty voices doubts over "no blame" medical compensation scheme

Doubts over a scheme to introduce “no blame” compensation for harm resulting from clinical treatment have been expressed by the Faculty of Advocates, in a response to a Scottish Government consultation.

Ministers want to end the “blame culture” that surrounds claims for medical negligence, through a new approach to dealing with claims up to £100,000, along with improvements to the existing legal process. Complex and higher value claims would continue to be dealt with through the courts.

In its response, Faculty stresses that it shares the desire to ensure that people wrongly injured should receive “appropriate and efficient” redress, but points out that delay in resolving cases 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", Faculty states. "It should also be capable of dealing with the volume of claims brought.”

Faculty says it is not clear how many claims would actually fall within the proposed scheme as both the least (due to a requirement of ongoing harm for at least six months) and most serious cases would be excluded from its ambit.

It also points out 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 now 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 adds.

Reforms include 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, which Faculty believes should lead to greater openness, speedier and less costly settling of claims and a higher level of satisfaction with the litigation process.

At the same time 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 undercompensated. Further, if the proposed scheme is administered by the Central Legal Office – the in-house solicitors to the Scottish NHS – it might not be seen by patients as independent or impartial.

“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 concludes.

Click here to view the response.