No-fault compensation: how will this affect people injured by medical negligence?

No-fault compensation: how will this affect people injured by medical negligence?

Following news that health ministers are working introduce no-fault compensation schemes as an alternative to medical negligence claims, our Consultant Senior Solicitor and panel member for patient safety and justice charity AvMA , Sarah Johnson, looks at whether injured patients would truly benefit from such changes.

The debate surrounding no-fault compensation for medical injury has been repeatedly mooted – and rejected – since the 1970s when Sweden and New Zealand first implemented their own procedures for victims of medical negligence.

The number of claims received and amount of compensation the NHS pays out through medical negligence errors has continued to rise over the last 15 years. In 2019/20, they received 11,682 new claims and paid out over £2.266 billion.

But in times of Covid, when NHS trusts are facing unprecedented pressure, overhauling the system of clinical negligence compensation now appears to be ‘going at pace’, according to health minister, Nadine Dorries. But what is the motive behind it?

Speaking to the health and social care committee, the health minister told how, in response to ongoing safety and spending reviews, they were now looking at how to deal with and administer no-fault compensation as an alternative way of dealing with clinical negligence claims.

Based on the Scandinavian approach, no-fault compensation schemes would mean families don’t have to prove causation and fault before they receive any damages. Instead, the system would be based on avoidability and that something actually went wrong.

Yes, change needs to happen so people with severe injuries can receive financial support to rebuild their lives more quickly. But is no-fault compensation the only solution? And how will it benefit individuals or families affected by clinical negligence?

My concern is that it would become akin to the Criminal Injuries Compensation Authority (CICA) scheme for victims of physical or mental injury resulting from violent crime: poorly resourced, a poor deal for the clients with inadequate levels of compensation, and the introduction of fixed fees to advise these clients on whether the deal on the table should be accepted or not.

Medical negligence solicitors are often smeared and discredited as ‘ambulance chasers’ and one of the main reasons the government is pursuing a new system is to reduce the amount they pay out in legal fees. But in truth, most reputable clinical negligence lawyers only take on a small percentage of all enquiries they receive. Those which are investigated and deemed to have little chance of success are bankrolled by the legal firms. Surely if avoidability was the only benchmark, more people would claim, thus resulting in more money paid out by the NHS?

Plus, what about accountability and learning lessons from mistakes made? Are we going to have the same duty of candour and risk management if taxpayer funded health bodies are not brought truly to account? As a panel member for Action Against Medical Accidents (AvMA), the charity for patient safety and justice, this is a major concern for the future of safe medical practice. Medical negligence claims aren’t always motivated by financial reward; most victims want justice and promise that others won’t be subjected to the same substandard care. Patient safety, particularly in maternity, is under great scrutiny. Yet reports of blame culture and bullying within areas of the NHS are rife. While almost all medical errors are unintentional, what deterrent will there be if causation and fault are abandoned.

As ever, the devil will be in the detail. Things like governance, common law rights, upper and lower payment limits, and controls to minimise waste and fraud will need to be examined before any implementation. I think this will be a hot topic of conversation at APIL/AVMA this year. It is important that those who represent victims of medical negligence can voice their clients’ concerns about a no-fault compensation system. It is the injured patients that will suffer the brunt of such reforms.

Sarah Johnson, Consultant Senior SolicitorSarah Johnson is one of Yorkshire’s leading medical negligence specialists with an acclaimed career stretching three decades. Along with her work with AvMA, she is also a senior litigator of APIL and a panel member for the Law Society’s Clinical Negligence Accreditation. Find out more about her here.

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