No fault Compensation Review Group

1、No Fault Compensation Review GroupReport and RecommendationsVolume ICommissioned by The Scottish GovernmentSt Andrews HouseRegent RoadEdinburghEH1 3DGForewordWe were asked by the Cabinet Secretary for Health and Wellbeing to consider the potential benefits for patients in Scotland of a no fault comp

2、ensation scheme for injuries resulting from medical treatment, and whether such a scheme should be introduced alongside the existing clinical negligence arrangements.Our report sets out the approach we adopted together with our findings, conclusions and recommendations which we hope will be helpful

3、and inform consideration of what is required to ensure that the compensation scheme in operation in Scotland meets the needs of those involved. This is an extremely complex area and there are, of course, a wide number of interests at stake. The Review Group has been fortunate to have representation

4、from many of these interested parties in its membership and I have been impressed with the commitment and enthusiasm that members have shown throughout our deliberations and I am extremely grateful for this support. We adopted a strategy which proactively utilised the unique expertise of members to

5、inform both our discussions and the development of our recommendations. We were also fortunate to be able to consult other experts as and when this was appropriate and I am also happy to acknowledge this assistance which was immensely helpful to us. The original report was submitted in November but

6、did not include costings for the introduction of a no-fault scheme. The research team has now provided advice, and the report offers comments on this in Chapter 7 paragraph 7.14. Finally, my sincere gratitude to the secretariat as a whole, and Sandra Falconer in particular, should be recorded. Their

7、 professionalism and support were outstanding, and Sandra was immensely helpful in putting together the final report.Professor Sheila A.M. McLean, LLB. MLitt, PhD, LLD, LLD, FRSE, FRCGP, F Med Sci, FSB, FRCP(Edin), FRSAInternational Bar Association Professor of Law and Ethics in MedicineChair 15 Feb

8、ruary 201169Content Page Summary of Conclusions and Recommendations5Chapter 19 Introduction and background Remit Approach Chapter 2 12 Evaluation of the current compensation system Evaluation of the system and proposals in England Evaluation of the proposals in Wales Evaluation of existing No Fault/

9、No Blame systems in the UKChapter 3 25 Evaluation of existing No Fault systems in other jurisdictionsChapter 4 36 Analysis of principles No Fault liability and the European Convention of Human Rights (ECHR) Chapter 5 42 Options consideredChapter 6 50 Additional considerationsChapter 7 55 Conclusions

10、 and recommendationsAppendices 59Appendix AReview Group membership Appendix BA Limited No Fault Scheme Appendix C List of evidence considered Appendix D DefinitionsResearch Reports published separately:Volume II - No Fault Compensation Schemes for Medical Injury: A ReviewVolume III - An empirical st

11、udy of medical negligence claiming in ScotlandFor further information please contact:Sandra FalconerScottish Government Health DirectoratesPatient Support and Participation DivisionGround East RearSt Andrews HouseEdinburghEH1 3DGTel: 0131 244 2399E-Mail: .uk Fax: 0131

12、244 2989AcknowledgementsWe are extremely grateful for the assistance provided during the course of our work by: Professor Jim Murdoch, Professor of Public Law, Glasgow University Staff at the British High Commission, New ZealandProfessor Ron Paterson, formerly Health and Disability Rights Commission

13、er, New ZealandAccident Compensation Corporation, New Zealand:Dr Jan WhiteACC Chief Executive,Dr Kevin Morris Director Clinical ServicesMike Playle Policy Manager, Strategic Policy & ResearchFiona Colman Senior Policy Analyst, Strategic Policy & Research Joy Baird Business Manager, Board & Corporate

14、 SupportProfessor Emeritus Henry Johansson, Medical Expert of the Patient Claims Panel Carl Espersson, Secretary of the Patient Claims Panel, SwedenKaj Essinger, Senior Advisor, Swedish Medical Injury Insurance Summary of Conclusions and Recommendations1. At the outset we sought to identify what we,

15、 as a group, considered a compensation system should seek to achieve. We agreed that this was not just about financial compensation; rather the objective should be to restore the person who had been harmed to the position they had been in prior to the injury, as far as this is possible. This is the

16、expressed aim of the current system, and non-financial support can presently be made available to assist in achieving this aim. However, the present system relies to a large extent on the provision of financial support by way of an award of damages, which alone is unlikely to meet the needs of injur

17、ed people. Rather, needs may extend to non-financial assistance such, for example, as rehabilitation, the provision of aids and appliances, as well as some investment in the restoration of trust and rebuilding of the relationship with healthcare professionals so that a patient feels confident in goi

18、ng back to the same practitioner or institution.2. Our research team reported (Farrell et al, 2010) that previous research suggests that when an error has occurred, patients expect doctors to make a meaningful apology, provide an explanation and take steps to prevent the error from recurring. The fi

19、ndings of their research would appear to support the contention that for many, if not most, patients this is the primary aim, rather than a financial award. 3. The existing approach is that “the NHS does not pay compensation when it has no legal liability for the harm suffered by the patient”. In or

20、der to obtain compensation for harm arising out of medical treatment, whether provided by NHSScotland or others such as independent contractors, patients currently need to show that there was “damage wrongfully caused”. 4.We take a no fault system to mean one in which there is no need to establish t

21、hat any individual was negligent; the focus is rather on the link between the (in)activity and the harm resulting from it. We explored several well-established no fault schemes in other jurisdictions with a particular focus on the New Zealand and Swedish models. Although these two schemes differ in

22、extent, funding basis and process, each has as its goals the facilitation of access to justice, the provision of adequate compensation for injured patients and the appropriate adjudication of claims goals which the review group believes should also inform the system of compensation in Scotland. In a

23、ddition, these no fault schemes seem to encourage a focus on non-financial support, such as rehabilitation.5. We tested the existing system, the existing system with some suggested improvements, the New Zealand and the Swedish system against the principles and criteria we developed and agreed were e

24、ssential in a compensation system. The Swedish model came out at the top of the list, meeting more of the criteria than any of the others. 6. As a group we considered that the following were essential criteria for a compensation scheme: The scheme provides an appropriate level of compensation to the

25、 patient, their family or carers; The scheme is compatible with the European Convention on Human Rights; The scheme is easy to access and use, without unnecessary barriers, for example created by cost or the difficulty of getting advice or support; People are able to get the relevant specialist advi

26、ce in using the scheme; Decisions about compensation are timely; People who have used the scheme feel that they have been treated equitably; The scheme is affordable; The scheme makes proportionate use of time and resources; The scheme has an appropriate balance between costs of administration (e.g.

27、 financial or time) and the level of compensation awarded; Decisions about compensation are made through a robust and independent process; The scheme has an independent appeal system. The scheme treats staff and patients fairly/equitably. A reasonable time limit is set for compensation claims 7. Giv

28、en that the Swedish model satisfied more of the principles developed by the group than any other system, including the existing one, we offer the following recommendations for consideration:Recommendation 1. We recommend that consideration be given to the establishment of a no fault scheme for medic

29、al injury, along the lines of the Swedish model, bearing in mind that no fault schemes work best in tandem with adequate social welfare provision; Recommendation 2. We recommend that eligibility for compensation should not be based on the avoidability test as used in Sweden, but rather on a clear de

30、scription of which injuries are not eligible for compensation under the no fault scheme;Recommendation 3. We recommend that the no fault scheme should cover all medical treatment injuries that occur in Scotland; (injuries can be caused, for example, by the treatment itself or by a failure to treat,

31、as well as by faulty equipment, in which case there may be third party liability); Recommendation 4. We recommend that the scheme should extend to all registered healthcare professionals in Scotland, and not simply to those employed by NHSScotland; Recommendation 5. We recommend that any compensatio

32、n awarded should be based on need rather than on a tariff based system;Recommendation 6. We recommend that claimants who fail under the no fault scheme should retain the right to litigate, based on an improved litigation system;Recommendation 7. We recommend that a claimant who fails in litigation s

33、hould have a residual right to claim under the no fault scheme;Recommendation 8We recommend that, should a claimant be successful under the no fault scheme, any financial award made should be deducted from any award subsequently made as a result of litigation;Recommendation 9. We recommend that appe

34、al from the adjudication of the no fault scheme should be available to a court of law on a point of law or fact.Recommendation 10We recommend that consideration should be given to our analysis of the problems in the current system, so that those who decide to litigate can benefit from them.8. The po

35、tential benefits of a no fault approach would be that: More people would obtain compensation, because of the removal of the requirement to prove fault; 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 ca

36、re provision by the state; c) The award could be made by administrative means or tribunal, rather than following an adversarial process;d) Money currently leaving the NHS would be retained in the system, thus improving NHS resources overall;e) There may be a considerable saving in legal fees. A no f

37、ault scheme also has the potential to integrate issues such as rehabilitation with financial compensation.9. A number of issues came to light in the course of our discussions that the review group believes are relevant to the likely success of any system agreed upon. Criteria that we considered desi

38、rable were also agreed upon, as was the importance of some wider issues:Desirable The public in general trusts the scheme to deliver a fair outcome; The scheme does not prevent patients from seeking other forms of non-financial redress, including through the NHS Complaints system; The scheme encoura

39、ges transparency in clinical decision-making; The scheme contributes to rehabilitation and recovery.Wider issues The scheme contributes to: organisational, local and national learning; patient safety; quality improvement. Lessons learned can be used to influence organisational risk management in the

40、 future; The scheme encourages and supports safe disclosure of adverse events; The scheme does not put barriers in place for referral to regulators of any cases which raise grounds for concern about professional misconduct or fitness to practise.10. We offer some thoughts on these matters in chapter

41、 6 in the hope that they may be of some interest and assistance.11. We also considered whether or not the establishment of a limited no fault scheme specific to neurologically impaired infants should be created in the event that a general no-fault scheme is not introduced. This is presented in Appen

42、dix B. Chapter 1Introduction and background1.1 In its consultation on the possible content of a Patients Rights Bill (conducted between 22 September 2008 and 16 January 2009) the Scottish Government acknowledged that it was possible that there may be instances where financial compensation should be

43、paid without the need to go through the legal process. The consultation paper expressed the Scottish Governments view that: a no fault compensation scheme could be simpler than existing processes, and could support the development of the concept of a mutual NHS as well as a positive feedback and lea

44、rning culture; and that no fault compensation was the favoured way forward for the NHS in Scotland.1.2 The consultation paper also: acknowledged the need for further work on the practical implications and potential costs of any such change in compensation arrangements; and made it clear that the Sco

45、ttish Government would explore the potential benefits for patients in Scotland of a no fault compensation scheme before taking any firm decision on future arrangements. 1.3 To progress this work Nicola Sturgeon, Deputy First Minister and Cabinet Secretary for Health and Wellbeing, announced on 1 Jun

46、e 2009 that she was establishing the No fault Compensation Review Group, to be chaired by Professor Sheila McLean of Glasgow University. We held our first meeting on 14 August 2009 and our last meeting on 7 October 2010. Meeting papers and the Minutes of the Group meetings are available on the Scott

47、ish Government website at: .uk/Topics/Health/NHS-Scotland/No faultCompensation. A list of the Group members is included at Appendix A.Remit 1.4 We were asked by the Cabinet Secretary for Health and Wellbeing to consider the potential benefits for patients in Scotland of a no fa

48、ult compensation scheme for injuries resulting from medical treatment, and whether such a scheme should be introduced alongside the existing clinical negligence arrangements, taking account of: The cost implications; The consequences for healthcare staff, and the quality and safety of care; The wide

49、r implications for the system of justice and personal injury liability; and The evidence on how no fault compensation has operated in other countries. 1.5 We were tasked to give full, frank and objective consideration of no fault compensation for medical injury and to submit our report and recommend

50、ations on the key principles and design criteria that could be adopted for a no fault compensation scheme in October 2010. 1.6 A research team, led by Professor Frank Stephen, University of Manchester, was appointed in November 2009 to support our work by: Reviewing and providing an up-to-date analy

51、sis of existing no fault schemes in other countries; Identifying the financial and other implications of introducing such a scheme within NHSScotland; Gathering information and stakeholder views from organisations representing healthcare staff and NHS service users as well as from individual NHS ser

52、vice users who have used the current system.The complete research findings are included in Volume II of this report. However, evidence from the report has been incorporated (and is referenced) as appropriate within the relevant chapters of the report to support our conclusions.Approach adopted 1.7 W

53、e were specifically asked to consider whether or not there would be benefits in changing the current fault-based system to one based on no fault for medical injuries. Although this limited the scope of our considerations to the legal system itself, throughout the course of our deliberations it becam

54、e clear that other issues were also important, such as what patients actually want (for example, a meaningful apology, an explanation for what happened), questions about patient safety, the need for a system that is capable of learning from mistakes and professional disciplinary issues. 1.8 Although

55、 we have confined our recommendations to the terms of the remit, we do make some general comments in chapter 6 concerning associated matters that appear to be integral to the likely impact and/or benefits of the recommendations we have made and how they might be implemented. We consider that this mi

56、ght also provide the impetus for further non-legal developments to improve the wider situation for patients and healthcare professionals, and for the NHS as a whole. We also agreed that any recommended changes should cover all healthcare professionals including those not directly employed by the National Health Service. Uniformity in the evaluation of liability, we believe, would benefit all parties. We accept