Consultation Report - Consultation on recommendations for no-fault compensation in Scotland for injuries resulting from clinical treatment

2. Introduction

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

2.2 The Review Group's report published in February 2011 (available at: http://www.scotland.gov.uk/Topics/Health/Policy/No-Fault-Compensation) 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.

2.3 It is worth reiterating at this point that the No-Fault Compensation Review Group agreed that:

'a compensation system was not just about financial compensation; rather the objective should be to restore the person who had been harmed to the position they had been in prior to the injury, as far as this is possible.'

2.4 The Review Group took a no-fault system to mean one in which there is no need to establish that any individual was negligent. However, they considered that the link between the (in) activity and the harm resulting from it (i.e. causation) would still need to be established.

2.5 The Review Group's recommendations (attached as Annex A) go much wider than NHSScotland suggesting a scheme should cover all clinical treatment injuries that occur in Scotland (i.e. include independent contractors and private healthcare). Recommendation 10 suggests improvements to the current litigation system and these are, where appropriate, being considered by the Scottish Government Justice Directorate in relation to the work on Court Reform.

2.6 Consultation exercises aim to elicit the views and experiences of a wide range of stakeholders. In this consultation we were seeking views on the recommendations made by the No-fault Compensation Review Group. The consultation did not set out to scope what such a scheme might look like as it was considered important first of all to gather views on the Review Group's recommendations and to also gather views on the practical implications of adopting the recommendations. The nature of the submissions varied with some respondents providing comment on some but not all of the questions and others provided more detailed comments on sections of the consultation that were of interest to them. In some instances comments received were relevant to more than one question. Where appropriate, general comments offered at the end of the consultation paper have been incorporated with the comments provided in response to the relevant consultation questions 1 to 12.

2.7 The findings are specific to this consultation exercise and do not necessarily reflect the weight or range of views within the population as a whole. The nature of the consultation and the small number of responses does not necessarily support the presentation of the findings in a quantitive way. We have presented results in percentage form, where possible, but have sought to focus on the qualitative findings. We have also provided information in some sections to show the responses by interest group.

2.8 We have attempted to provide further explanation within this report where we felt respondents would find this helpful and it would provide further clarity.

2.9 The closed consultation paper is available at http://www.scotland.gov.uk/Resource/0039/00399081.pdf. The full list of consultation questions is given in Annex B. A list of the respondents is given in Annex C.