'No-Blame' Redress scheme

3. Principles and Eligibility Criteria

3.1 Consideration has since been given to possible approaches, which would meet the Scottish Government commitment, take account of the move to a more 'open culture', and provide quicker access to redress, where appropriate. A person-centred scheme, which is trusted as fair by patients and staff alike, will reduce legal costs and the need to go through lengthy legal processes.

3.2 The Ministerial commitment is that any scheme will also contribute to patient safety, learning and improvement and we would therefore propose to integrate the scheme with the NHS Scotland feedback, complaints, adverse incident reporting and Duty of Candour processes as the scheme is being developed.

3.3 Under the national approach to learning from adverse events, set out in the National Framework issued by Healthcare Improvement Scotland (HIS)^[12], and the forthcoming introduction of a statutory Duty of Candour in health and social care settings, the patient (and their families) should be informed when and why an error, which has resulted in harm, has occurred. A report setting out details of the incident and the report of the full investigation will be prepared and will be used in consideration of whether the eligibility criteria for redress has been met.

Question 1: Do you agree that it is appropriate to integrate the process for the redress scheme with the incident investigation, duty of candour and complaints processes to ensure consistency, improvement and shared learning?

If you disagree please briefly explain why:

3.4 Eligibility criteria are a feature of all 'no fault' or 'no-blame' schemes world-wide, with common features including: thresholds, limitations on the extent of cover and additionally limitations or caps are applied to the sums payable. In working to scope and shape a fairer and importantly affordable Scottish scheme a number of approaches were considered. Those options have been narrowed down and our preferred approach for the initial establishment and testing of a no-blame redress scheme in Scotland is set out in this paper.

3.5 Additional information gathered for the NHS in Scotland in relation to complaints, adverse events and claims has been considered. This has permitted further exploration of possible approaches for the development of eligibility criteria which would allow the introduction of a fairer, faster and simpler approach to handling compensation claims and one which is affordable. The proposal is that the scheme will be based on the following broad principles:

• Compensate quickly and fairly for avoidable harm where the investigation establishes the harm would have been avoided by the use of 'reasonable care'. (Will exclude cases where the unfavourable outcome was one of the unavoidable risks of the procedure.)
• Defend medically reasonable care
• Reduce patient injuries (and therefore claims) by learning from patients' experiences

Question 2 - Do you agree with these broad principles?

If you disagree please briefly explain why:

3.6 Given the concerns highlighted at 2.3 above (in relation to the original Recommendation 2) we would propose that, as in Sweden, the eligibility criteria should be structured around the notion of 'avoidability'; i.e. the test is whether the harm caused by the treatment was avoidable. The proposed scheme will therefore be 'no-blame' rather than a true 'no-fault' scheme, which would potentially cover avoidable and unavoidable harm. The Swedish scheme also uses the 'experienced specialist rule', under which consideration is given to the risks and benefits of treatment options other than the one adopted and a retrospective approach has been taken in some cases in the evaluation of whether the injury was avoidable.

3.7 The draft proposals for the no-blame redress scheme combine a new approach for dealing with compensation for causally connected avoidable harm where the harm has been or is likely to be, experienced by the person for a continuous period of at least 6 months with improvements to the existing legal process.

Question 3 - Do you agree that eligibility should be structured around the notion of 'avoidability'?

If you disagree please briefly explain why:

Question 4 - Do you support the proposal that the non-retrospective scheme should be restricted to harm which has been or is likely to be, experienced by the person for a continuous period of at least 6 months?

If no, please briefly explain why: