'No-Blame' Redress scheme

5. Legislation

5.1 As it stands, current legislation does not allow Ministers to introduce a redress scheme which makes provision for payment of sums which Health Boards etc. have no legal liability (actual or potential) to pay. Primary legislation giving enabling powers is therefore required as existing provisions within Section 85B of the NHS Scotland Act 1978 http://www.legislation.gov.uk/ukpga/1978/29/section/85B only allow Ministers to introduce a scheme to make provision to meet liabilities (i.e. sums of money which are legally due).

5.2 A provisional slot has therefore been identified for the introduction of a bill for Primary legislation for a 'No-Blame Redress Scheme' in early 2017. To allow time for the passage of the bill through the Scottish Parliament and the development of appropriate secondary legislation and guidance, the earliest introduction of such a scheme is likely to be in 2018-19.

5.3 The primary legislation and process will be developed in a manner which would allow the eligibility criteria, cap and scope to be amended at a later date through secondary legislation, if appropriate once the scheme has been established and fully tested.

Question 8 - Do you agree that the primary legislation should be flexible enough to allow the eligibility criteria and scope of the scheme to be extended at a later date?

If you disagree please briefly explain why:

5.4 The original No-fault Review Group recommendations included:

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.

5.5 The proposed scheme will be compliant with the European Convention of Human Rights and patients will retain the right to go to Court should they wish. The legislation will, however, protect against 'double dipping' i.e. if a patient accepts an award offered under the new No-Blame Scheme they would not then be able to use that to raise a legal claim for negligence. (Please see Item 8 below in relation to consideration of an appeal process.)

Question 9 - Do you agree that the legislation should protect against 'double dipping'?

If you disagree please briefly explain why: