Law Society: Proposals for patient-centred no-fault redress scheme must not increase blame culture in NHS

The Law Society of Scotland has supported proposals to introduce a no-blame redress scheme for the healthcare sector, but has said the proposed cap for financial compensation is too high at £100,000.

In its response to the Scottish Government’s consultation on a proposal for a no-blame redress scheme, the Law Society also said it was important that any new scheme was fair, impartial and accountable and would not add to a blame-culture within the NHS.

Alison Britton, convener of the Law Society of Scotland’s Health and Medical Law Committee, said: “We agree with the broad principles of having a no-fault redress scheme which would allow greater access to justice for patients and the ability to seek financial recompense when something goes wrong, but which removes the need to show fault on the part of a healthcare professional. Promoting access to justice will very much depend on the transparency and ease for claimants to understand the scheme.

“It’s generally agreed that relatively minor injuries or low value claims can result in a positive resolution but by their very nature, medical injury claims can be complicated. That’s why we don’t support a cap of £100,000 and have suggested that the limit should be set at £25,000. If the value of a claim is approaching such a high figure it is likely to be a more complex case involving a number of different issues and the patient may need legal advice on the options available to them. We would also want to guard against any lack of equity between those who are awarded through the current system and those awarded through the proposed no fault system.”

She added, “We recognise that there is merit in establishing a scheme that could be integrated into existing structures for investigating an incident. However, given that it may be the same organisation that currently represents the NHS interests which would carry out the investigation, there would need to be careful processes put in place to ensure independence in the provision of advice for the claimant as well as impartiality in fact finding and adjudication. Affordability of any no fault scheme is also a big challenge and a balance has to be sought in ensuring access to justice while maintaining a scheme which is affordable.”

Britton, who is Professor of Healthcare and Medical Law at Glasgow Caledonian University, added that care would be required to ensure that introducing a no-blame scheme would not exacerbate any existing blame culture.

She said: “There have been recent steps within legislation to enhance patient rights and encourage transparency in healthcare, including the Apologies (Scotland) Act 2016, and we think it is right that the patient should be at the centre of any new scheme. However we also need to ensure that it doesn’t inadvertently place more pressure on healthcare staff and add to the blame culture that exists around medical negligence claims within the NHS – indeed, we think the proposed name of the scheme is unhelpful in this regard.

The Law Society has also raised concerns around the possibility of restricting the scheme to clinical treatment provided by directly employed NHS staff in Scotland.

Professor Britton said: “This would exclude independent contractors such as GPs, opticians, dentists and pharmacists which could mean that many people would not qualify to make a claim. It also means that there would be a dual process with the potential for a double standard and imbalance in compensation awarded.

“The government will need to ensure that such a scheme will be effective and will improve access to information and explanation for patients. Often what people are seeking is an explanation for what went wrong and litigation is only considered as a last resort. It will be vital to ensure than a potential claimant is properly advised on the options available to them.”

The full Law Society of Scotland response is available to read on the website: No Blame Redress Scheme Consultation