Consultation on Recommendations for No-Fault Compensation in Scotland for Injuries Resulting from Clinical Treatment

Annex C Definitions

We have set down below some broad definitions for certain words or phrases referred to in this consultation paper in order to set the context for some of our considerations.

Avoidability Test- tests to establish whether the harm would have been avoided by the use of 'best' practice.

Causation - As well as proving breach of duty, a pursuer must also prove that the breach of duty caused the loss or harm complained of, or at least materially contributed to it.

Compensation - Compensation is a wider term than damages, and covers the provision of something to the injured person (or the injured person's dependants in the case of death) in consequence of the injury or harm, and for the purpose of removing or alleviating its ill effects.

Delict - in Scots Law is, amongst other things, the responsibility to make reparation caused by breach of a duty of care or, arguably, the duty to refrain from committing such breaches. The equivalent in English law and other common law jurisdictions is known as tort law.

Experienced specialist rule - This rule considers whether injuries could have been avoided under optimal circumstances, in that the injury would not have occurred in the hands of the best health practitioner or health system.

Harm - this may include flawed or inadequate consent; affront/outrage; breach of confidentiality; pain and suffering caused through unnecessary Treatment; loss of a probability of a cure/successful treatment.

Injury - Physical injury (an incident or condition causing physical pain will, in general, be regarded as injury e.g. Inadequate anaesthetisation), psychiatric injury as confirmed by a Consultant Psychiatrist or Consultant Psychologist; wrongful birth (a mother who gives birth following a failed sterilisation to an otherwise healthy baby will be awarded damages for the pain and suffering of the childbirth even although medically, this might not be regarded as "injury").

Independent contractor - Most GPs, opticians, dentists and pharmacists are independent contractors. This means that they are not employed directly by the NHS but are contracted to provide services to patients for which they are paid by the NHS. In addition, independent contractors may also carry out private work which is not funded by the NHS.

Clinical Error - is "the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances". This, by definition, requires proof equivalent to that of proving negligence; that is malpractice, in the same way as a clinical malpractice claim under delict law.

NHS Indemnity - NHS bodies are legally liable for the negligent acts and omissions of their employees or agents in terms of the principle of vicarious liability, and should have arrangements for meeting this liability. NHS Indemnity applies to staff in the course of their NHS employment, as well as GPs or dentists, who are directly employed by Health Boards. It also covers people in certain other categories whenever the NHS body owes a duty of care to the person harmed, including, for example, locums, medical academic staff with honorary contracts, students, those conducting clinical trials on NHS patients, volunteers and people undergoing further professional education, training and examinations. NHS Indemnity does not apply to general medical and dental practitioners (or their employees) working as independent contractors under contract for services. General practitioners are responsible for making their own indemnity/insurance arrangements, as are other self-employed health care professionals such as chiropodists and independent midwives. NHS Indemnity does not apply to employees of private hospitals (even when treating NHS patients) local education authorities or voluntary agencies.

Negligence - failure to exercise a duty required by law to show reasonable care, when doing or omitting to do something, in order to avoid loss or harm to others. It is not always medical practitioners who cause or contribute to injury - nurses, clinical support staff, laboratory staff, blood transfusion staff, pathology staff, administrative support staff may also contribute to injury.

No-fault compensation - we use this to refer to compensation which is obtained without the need to proceed against the person responsible for the harm.

Professional Negligence - A medical practitioner, like others exercising professional skills, must display and apply reasonable care and a reasonable standard of professional competence in order to avoid loss or harm to others. There is no automatic liability for accidents, and the test often depends on what is usual and normal practice. Deviation from usual and normal practice is negligence only if the course of action adopted is one which no professional man of ordinary skill would have taken if they had been acting with ordinary care. (Hunter v Hanley 1955 SC 200) However, the practice relied on must have been accepted by a responsible body of medical experts skilled in the field, their opinion must have had a logical basis, and the experts must have applied their minds to the comparative risks and benefits. (Bolitho v City and Hackney Health Authority 1998 AC 232)

Redress - this may include investigations when things go wrong, remedial treatment, rehabilitation and care when needed; explanations and apologies; and financial compensation in certain circumstances.

Tort -in English Law is, amongst other things, the responsibility to make reparation caused by breach of a duty of care or, arguably, the duty to refrain from committing such breaches. The equivalent in Scots law and other common law jurisdictions is known as delict law.

Treatment - includes the giving of treatment; diagnosis of a medical condition; a decision to treat or not to treat; a failure to treat or treat in a timely manner; obtaining or failing to obtain informed consent to treatment; the provision of prophylaxis; application of any support systems including policies, processes, practices and administrative systems which are used by the treatment provider and directly support the treatment. It also includes failure of equipment, devices or tools which are used as part of the treatment process, whether at the time of treatment or subsequently. Failure of implants and prostheses are included, except where the injury is caused by general wear and tear.