No-fault NHS compensation system: Equality however not fairness | Medical Negligence and Private Damage Weblog | Kingsley Napley


This text was initially printed within the Legislation Society Gazette on 1st April 2024 No-fault NHS compensation system: Equality however not fairness

The current Instances Well being Fee Report with ‘10 suggestions to avoid wasting the NHS’ incorporates many smart proposals, however the concept of introducing a no-blame compensation scheme for medical errors is misguided and would disbenefit as many because it helps. 

This proposal reportedly has the backing of chancellor Jeremy Hunt and well being secretary Victoria Atkins, to scale back spiralling NHS negligence payments and assist the NHS be taught from errors ‘somewhat than getting legal professionals concerned’.

Households would now not must endure prolonged litigation to show negligence and entry compensation, the idea goes. As an alternative, compensation funds can be standardised and based mostly on want.

It’s all too straightforward to forged claimant medical negligence legal professionals because the bogeyman in terms of the rising quantities the NHS pays in compensation. But many will inform you that it’s truly typically NHS Decision’s conduct that unnecessarily will increase litigation prices in being sluggish to confess fault, or, in some situations, settling legal responsibility admitted damages evaluation instances simply days earlier than trial.

A no-fault tariff based mostly system would merely exchange one flawed mannequin with one other. It would seemingly provide equality, however it might not provide fairness. It will probably end in the identical quantum of funds being unfold extra thinly round extra folks. Eradicating the necessity to show negligence would inevitably enhance the variety of claims after which to make the system inexpensive, compensation funds must be decrease. Everybody struggling an avoidable antagonistic occasion would get slightly, extra shortly, however those that endure severe hurt, for instance the household of a kid with cerebral palsy, would massively lose out. It’s inconceivable {that a} greater pot general can be obtainable for injured claimants, and that actually doesn’t seem in any of the no fault proposals that I’ve seen.

While some who’re at present denied compensation would little question profit, there can be many extra critically disabled individuals who would lose out and wouldn’t be capable of entry the 24 hour care and assist they want. In distinction, these injured in a non-medical accident, comparable to a highway site visitors incident, would nonetheless have entry to a authorized system the place full compensation for his or her accidents may very well be sought.

Examples are sometimes made from no fault programs in different jurisdictions. Nevertheless, such comparisons are flawed with out correctly contemplating that international locations comparable to Sweden have a distinct social welfare construction and the actual fact the scheme there’s partly funded by insurance coverage funds. With decrease compensation funds very probably underneath a no-fault system within the UK, these critically injured would sadly be left reliant on a stage of advantages which can not correctly assist their wants.

Most medical negligence legal professionals agree we’d like cultural change throughout the NHS; a willingness to be open about what went incorrect and to be taught from errors would undoubtedly assist to deliver down the present compensation invoice. It will additionally assist those that are deserving of compensation to be assessed on wants extra shortly. Nevertheless an inevitably poorly funded, rigid and indiscriminate tariff scheme is not any magic resolution.

Additional data

You probably have any questions, please contact James Bell in our Medical Negligence and Private Damage group.

 

in regards to the creator

James is the top of our Medical Negligence and Private Damage follow and joined the agency in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and private harm instances for over 30 years.

 

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