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

5. Limited no-fault compensation scheme for neurologically impaired infants

5.1 The Review Group also considered whether or not the establishment of a scheme specific to neurologically impaired infants should be created in the event that a general no-fault scheme is not introduced. Members considered that this group of patients arguably represents a special case and certainly accounts for the most significant sums awarded in compensation and legal costs. The Review Group was of the view that this was worthy of consideration and provided an outline of a possible approach. The outline of a possible limited scheme is included as Annex B to the group's report¹¹.

5.2 The group considered that the possible benefits of the suggested approach would be that:

• More children would obtain compensation, because of the removal of the requirement to prove fault
• Compensation could be awarded much more quickly, because:

a. There is no need to prove fault

b. Care needs would be met by a guarantee of ongoing care provision by the state, obviating the need to wait until the child's needs are fully established (which may be a matter of ten years or more) to avoid under-compensation

c. The award could be made by administrative means or tribunal, rather than following an adversarial process

d. Money currently leaving the NHS would be retained in the system, thus improving NHS resources overall

e. There may be a considerable saving in legal fees.

Question 12: Would you support the establishment of a scheme specific to neurologically impaired infants if a general no-fault scheme is not introduced?

What are your views on the Review Group's suggestion that the future care component of any compensation in such cases could be provided in the form of a guarantee of delivery of services (both medical and social care) to meet the needs of the child, instead of by way of a monetary sum?