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

Ministerial Foreword

In June 2009 I announced the establishment of the No-fault Compensation Review Group, chaired by Professor Sheila McLean, Glasgow University, to consider the potential benefits for patients in Scotland of a no-fault compensation scheme and whether such a scheme should be introduced alongside the existing clinical negligence arrangements.

The Review Group's report⁴ published in February 2011 set out their view on the essential criteria for a compensation scheme and recommended that consideration should be given to the establishment in Scotland of a no-fault scheme for clinical injury, along the lines of the 'no blame' system in operation in Sweden. The recommendations go much wider than NHSScotland suggesting a scheme should cover all clinical treatment injuries that occur in Scotland.

In my response to the report I made it clear that we would undertake some further work around the cost implications and investigate thoroughly how such a scheme would work in practice, both for the benefit of individual patients and the good of the health service as a whole. The report⁵ of the study conducted by the researchers from Manchester University who supported the Review Group was published on 7 June 2012. Part of the study explored the potential expenditure implications of a no-fault scheme based on the analysis of data on closed cases dealt with by the Central Legal Office (CLO) under current arrangements. Cost estimates have been calculated based on a range of assumptions about how a no-fault system might operate; the volume and value of claims; as well as costs of the current system in recent years. The researchers have stressed that the estimates produced are not predictions of what a no-fault scheme would cost in the future but are estimates of what public expenditure would have been in a typical year over the recent past for cases handled by the CLO had the proposed no-fault scheme been in existence. It is therefore important to note that further work is still needed to help in our understanding of the volume and level of compensation claims handled by the Medical Defence Unions and private healthcare providers. We will seek to explore this further with the relevant stakeholders during the consultation period.

No decision has been made in relation to whether a no-fault system should be introduced and I do not underestimate the complexity of introducing such a system. This consultation seeks wider views on the Review Group's recommendations in order to help in our understanding of what the practical implications are. Your views will help us make an informed decision and assist in our consideration of the scope and possible options for taking this forward. We want to ensure that those affected by injury through clinical treatment receive appropriate redress without the need to go through a lengthy court process. I would encourage you to respond to this consultation.

Nicola Sturgeon
Deputy First Minister and Cabinet Secretary for Health, Wellbeing and Cities Strategy