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 save lots of the NHS’ accommodates 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 cut back spiralling NHS negligence payments and assist the NHS be taught from errors ‘moderately than getting attorneys concerned’.
Households would now not have to endure prolonged litigation to show negligence and entry compensation, the idea goes. As a substitute, compensation funds could be standardised and primarily based on want.
It’s all too straightforward to forged claimant medical negligence attorneys because the bogeyman in terms of the rising quantities the NHS pays in compensation. But many will inform you that it’s truly usually NHS Decision’s conduct that unnecessarily will increase litigation prices in being gradual to confess fault, or, in some cases, settling legal responsibility admitted damages evaluation instances simply days earlier than trial.
A no-fault tariff primarily based system would merely change one flawed mannequin with one other. It’d seemingly provide equality, however it might not provide fairness. It could seemingly 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 adversarial occasion would get somewhat, extra rapidly, however those that endure critical hurt, for instance the household of a kid with cerebral palsy, would massively lose out. It’s inconceivable {that a} larger pot general could be accessible for injured claimants, and that definitely doesn’t seem in any of the no fault proposals that I’ve seen.
While some who’re at present denied compensation would little doubt profit, there could be many extra severely 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, equivalent to a street site visitors incident, would nonetheless have entry to a authorized system the place full compensation for his or her accidents could possibly be sought.
Examples are sometimes product of no fault techniques in different jurisdictions. Nevertheless, such comparisons are flawed with out correctly contemplating that international locations equivalent to Sweden have a special social welfare construction and the actual fact the scheme there may be partly funded by insurance coverage funds. With decrease compensation funds very seemingly below a no-fault system within the UK, these severely injured would sadly be left reliant on a stage of advantages which can’t correctly assist their wants.
Most medical negligence attorneys agree we want cultural change throughout the NHS; a willingness to be open about what went improper and to be taught from errors would undoubtedly assist to deliver down the present compensation invoice. It could additionally assist those that are deserving of compensation to be assessed on wants extra rapidly. Nevertheless an inevitably poorly funded, rigid and indiscriminate tariff scheme is not any magic resolution.
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You probably have any questions, please contact James Bell in our Medical Negligence and Private Damage crew.
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James is the top of our Medical Negligence and Private Damage observe and joined the agency in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and private damage instances for over 30 years.
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