6.10 We have noted and recorded in this report the significant concerns raised about the introduction of a no-fault compensation scheme and in particular the major
concerns raised in relation to costs and the complexities involved if such a scheme was to be introduced and extended to independent contractors and private
healthcare providers.
6.10.1 However, we are still committed to ensuring that patients who have been harmed as a result of clinical treatment have access to redress in the form of compensation, where this is appropriate and that they have access to this without the need to go through lengthy court processes. We will continue to work towards developing a fair system and in doing so will aim to ensure that this will not be at the expense of other essential NHS services.
6.10.2 The Manchester University Study – Summary of their research findings31
notes that:
‘Fault-based schemes focus solely on the need to prove negligence and it has been argued that this does little to improve the quality of care, produces defensive medical practices, discourages error reporting and institutional learning, and blocks transparency. While it has been argued that no-fault schemes may address some of these problems, the primary goal should be to prevent errors from occurring in the first place.’
For scheme providers and their members, costs of claims need to be contained, and while savings can be made by minimising costs associated
29 http://www.scotland.gov.uk/Publications/2013/09/8038 30 http://www.scottish.parliament.uk/parliamentarybusiness/Bills/72771.aspx 31 http://www.scotland.gov.uk/Publications/2012/06/2048/1
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with litigation, such as excessive legal fees and expert reports, the most significant cost driver is the number and extent of claims.”
6.10.3 NHSScotland aims to provide high quality care that is safe, effective and person-centred. The national approach to learning from adverse events explained earlier (paragraph 6.5.3) provides guidance for the whole of NHSScotland on how to develop and implement effective adverse event management systems. Safety is one part of high quality healthcare services and the national approach contributes to delivery of our NHS Quality Strategy (2010)32 and 2020 vision33. It is proposed that the national approach be reviewed in 2014.
6.10.4 The Scottish Patient Safety Programme34, plays a significant role in delivering the Safe Quality Ambition and aims to reduce adverse surgical incidents and
healthcare associated infection, while improving critical care outcomes and organisational and leadership culture on safety.
6.10.5 The Patient Rights (Scotland) Act 2011 and the revision of the ‘Can I help you?’ guidance also seek to support the development of a culture that actively encourages and welcomes feedback, comments, concerns and complaints in order to learn from people’s experiences and make improvements. As part of this process NHS Boards are required to publish anonymous details annually on patient
feedback, comments, concerns and complaints which provides evidence that action is or has been taken, where appropriate, to improve services and show where lessons have been learned. The NHS Board reports for the first year have been received and reviewed by the Scottish Health Council35. The Scottish Health Council followed up on the review with a meeting with each NHS Board to discuss the learning from the first year of reporting, to share examples of good practice and to highlight common challenges. The findings from these discussions will be
published in the spring of 2014 and considered by the Scottish Government with the aim of ensuring that NHS Boards across Scotland consistently listen to and learn from feedback, comments, concerns and complaints.
6.10.6 The national roll-out of Patient Opinion36 from March 2013, the patient experience surveys37 and the Patient Advice and Support Service38, established in April 2012, also provide routes for patients and their families to provide feedback and comments on their experience in order that the NHS can learn and make
improvements. 32 http://www.scotland.gov.uk/Publications/2010/05/10102307/0 33 http://www.scotland.gov.uk/Topics/Health/Policy/2020-Vision 34 http://www.scottishpatientsafetyprogramme.scot.nhs.uk/programme 35 http://www.scottishhealthcouncil.org/publications/research/review_of_nhs_feedback.aspx 36 https://www.patientopinion.org.uk/ 37 http://www.scotland.gov.uk/Topics/Statistics/Browse/Health/InpatientSurvey 38 http://www.cas.org.uk/patientadvice
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6.10.7 Improvement work is also being taken forward across NHSScotland, Social Care and the third sector through the Person-centred Health and Care Collaborative launched by Mr Neil, Cabinet Secretary for Health and Wellbeing, in
November 2012. The aim is to enable care to be centred on people by December 2015, through improvements in care experience, staff experience and co-production. 6.10.8 We will monitor the progress of the measures which have been put in place to improve the quality and safety of the services provided. In particular we will monitor:
the implementation and effect of the national approach to learning from adverse incidents
claims handled by the Central Legal Office
Improvements and actions taken as a result of feedback, comments, concerns and complaints
Improvements made through the Scottish Patient Safety Programme and the Person-centred Health and Care Collaborative.
6.10.9 We will also continue to progress and monitor the impact of the work being taken forward in relation to the Courts Reform (Scotland) Bill and how this will improve the existing legal claim system.
6.10.10 Given the complexity of the issues and the potential costs we will proceed with caution to:
Explore the scope, shape and development of a no-fault compensation in Scotland for injuries resulting from clinical treatment and the subsequent introduction of such a scheme. This will involve further detailed work especially in relation to projected cost and eligibility criteria; and
consider how the scheme could more effectively contribute to patient safety, learning, improvement and how it links with and supports safe disclosure of adverse events and aligns with the complaints and claims procedure. We will also link this with the HIS review of the national approach to learning from adverse incidents and plans to review clinical governance arrangements in NHS Boards.
6.10.11 We will develop and consult on draft proposals once the work outlined above has been completed.
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Annex A
No-fault Compensation Review Group recommendations Recommendation 1
We recommend that consideration be given to the establishment of a no fault
scheme for medical 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 description 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, 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 compensation 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 should have a residual right to claim under the no fault scheme
Recommendation 8
We 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 appeal from the adjudication of the no fault scheme should be available to a court of law on a point of law or fact
Recommendation 10
We 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.
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Annex B Link to consultation and list of consultation questions
The consultation paper is available at:
http://www.scotland.gov.uk/Resource/0039/00399081.pdf Consultation questions
1. The research team supporting the review reported (Farrell et al, 201039) 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 findings 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.
2. The Scottish Public Services Ombudsman (SPSO) has published advice in relation to apology40. This advice was referenced in the guidance issued to
NHSScotland in March 2012 on the handling and learning from feedback, comments, concerns and complaints.
Question 1: What, if any, steps do you feel are necessary or appropriate to ensure