As the adage goes, “Be careful what you wish for”. There might be unintended consequences to deal with if your wish comes true. This adage is apposite to recent discussions about the need to introduce a no-fault based liability scheme for clinical negligence in the NHS. Over the years there have been regular calls to replace our tort, fault based clinical negligence compensation system with a no-fault scheme which exists in some other countries. Sweden, New Zealand, Denmark are often cited examples of such schemes. The most recent calls have been by the Chancellor of the Exchequer Jeremy Hunt , who was a long standing Secretary of State for Health and Social Care. Hunt was giving evidence to the Times Health Commission which is a report into the state of health and social care in Britain today. He backs recommendation 5 made in the report:
“Introduce no-blame compensation for medical errors with settlements determined according to the need to ensure families get quick support and encourage the NHS to learn from mistakes.”
Hayward et al report on his evidence . Hunt said that a no-fault system would prevent further patient safety tragedies by focusing on “learning from mistakes so that they’re not repeated,” rather than “getting lawyers involved “and pinning the blame on individuals”. The change would hope to end long court battles to establish clinical negligence. There is also a need to reduce spiralling costs. Hunt, as reported in Hayward et al, talked further about developing a learning culture and, among other issues, cited the problems of lengthy litigation: “What do we do? Lawyers get involved, people clam up, there’s a court case, it takes five to seven years and in the end the parent will probably get the money they want, after a hell of a battle.”
Hunt makes some good points which can also be seen made in the NHS Litigation Reform Inquiry which he Chaired. There are however both sides to every argument and this is a contentious area. The arguments for and against no-fault schemes have been well rehearsed over the years they can be seen being made in 2003 by the Chief Medical Officers Consultation Paper, Making Amends:
“Given the disadvantages set out at paragraph 9, the potentially large costs and the practical difficulties in framing an efficient comprehensive no-fault based scheme, not least to conform with the Human Rights requirements, I have rejected a wide-ranging no-fault scheme for all types of injury.” (p113).
More recently the Department of Health and Social Care in its response to the NHS Litigation Reform Inquiry stated:
“Adopting these alternative schemes, particularly a no-fault scheme, could potentially lead to an increase in costs for the NHS. We welcome further evidence from stakeholders as part of this inquiry process on these and other compensation approaches used in different countries.” (paragraph 30).
The problems of our present way of compensating patients who have suffered clinical negligence have been well articulated in several places including the NHS Litigation Reform Inquiry and the Times Health Commission. Delay, high cost, stress impact on NHS staff and patients, encourages defensive medicine, does not encourage lesson learning from errors and so on. There are a multitude of problems that have been discussed over the years and the debate continues. We all wait a long promised government consultation on reforming the clinical negligence system.
What is clear however is that a no-fault scheme can be seen to be being viewed as a panacea to cure all the ills of how we compensate patients for clinical negligence. There are dangers with no fault schemes, none the least the need to still prove causation which is the most difficult aspect to establish in the current tort based system. The issue of no-fault liability in clinical negligence requires detailed research and consideration, there are advances as well as disadvantages with the schemes. They should not be seen as a panacea to cure all the ills of the way we compensate patients for clinical negligence. There is a more detailed discussion of these issues in my forthcoming opinion column in the British Journal of Nursing (in press).