This item was published during the term of a previous administration that ended in April 2007
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Recommendation against 'no-fault' principle
24/03/2003
The final report of the Expert Group on Financial and Other Support, published today, has concluded not to recommend the introduction of a general no-fault compensation scheme for the NHS in Scotland.
The final report, while rejecting the no-fault concept, has re-stated and refined the recommendation made in its preliminary report that the Executive should compensate Hepatitis C sufferers who received blood, blood products or tissue from the NHS in Scotland, and who were subsequently infected with the virus.
It also re-stated recommendations in its preliminary report concerning the provision of legal aid and also support for people who suffer from Hepatitis C.
The final report also made new recommendations:
- The Executive should consider including the following in their revision of the NHS complaints procedure: better training for complaints/claims handling staff; more accessible information for complainants and claimants in clinical cases; more emphasis on face to face or telephone contact to clarify points not clearly expressed; increased support or advocacy for complainants and claimants in the early stages to prevent complaints escalating and to enable complaints to be dealt with appropriately
- The Executive should consider encouraging NHS Trusts and Boards to use their power to make ex-gratia payments under the NHS complaints procedure in respect of 'lesser injuries'
- Endorses the recommendation made by the Royal Society of Edinburgh in their report "Encouraging resolution - Mediating patient/health service disputes in Scotland", that the Executive should, in conjunction with the National Health Service Scotland Central Legal Office (CLO), undertake a fully researched mediation project mirroring that being undertaken by the National Health Service Litigation Authority (NHSLA) in England
- The Executive should consider making initial funding for Action for Victims for Medical Accidents (AVMA) to open a Scottish Branch
- The Executive should invite the Law Society and the Scottish Legal Aid Board to consider increasing the level of fees to solicitors in civil business to enable them to pursue clinical negligence cases and also enable increased expenditure to be available for payments of outlays in relation to reports e.g. medical reports
- The Executive should draw the attention of the Lord President of the Court of Session to the need for implementation of judicial management procedures for complex clinical negligence cases
- The Executive should continue to encourage the Central Legal office to offer structured settlements
The Chair of the Expert Group, the Rt Hon Lord Ross, former Lord Justice Clerk of Scotland said:
"In its Final Report, the Group repeats what was stated in its Preliminary Report, namely, that there is a moral obligation to provide compensation for people who have contracted Hepatitis C through receiving blood products from the NHS in Scotland. It is wrong that such people should be treated less favourably than people who have contracted HIV under similar circumstances.
"While the Group welcomes the fact that the Minister for Health and Community Care has now stated that he proposes to make some payments to some of those who have contracted Hepatitis C from blood products, it is concerned that not all such people and their dependants are to receive payments, and it urges the Minister to reconsider the matter, and to undertake full implementation of the Group's recommendations regarding such hepatitis C cases.
"In the course of its deliberations, it became clear to the Group that claimants in clinical negligence cases generally experience difficulties in prosecuting their claims. These difficulties are manifold - finding a solicitor, obtaining legal aid, finding medical experts to assist with the claim, and processing their claims.
"The Group has therefore made a number of practical recommendations designed to make it easier for claimants for clinical negligence cases to take their claims forward. These recommendations relate to legal aid and the level of fees to solicitors in civil business, the NHS Complaints Procedure, research into Mediation as a means of resolving such claims, the establishment of a Scottish branch of AVMA (Action for Victims of Medical Accidents), court procedure and structured settlements.
"The Group is convinced that much could be done to make it easier for claimants, and that implementation of its recommendations would be beneficial not only to claimants but also to the NHS in Scotland."
The Expert Group was established by the Executive in March 2002.
Its remit was:
- To consider whether a system of financial and other support might be available to people who have been harmed by NHS treatment in Scotland in circumstances where there is unlikely to be liability on the part of NHSScotland and to apply general principles which are consistent, equitable and transparent
- The situation of patients who have contracted HIV and/or Hepatitis C from blood transfusion or treatment with blood products should form part of the wider considerations
- Preliminary recommendations should be made by the end of July 2002 and should include whether the current system should be changed and, if so, what changes should be made and whether any of these changes should be applied retrospectively
- Consideration should also be given to the current dispute and compensation mechanisms in Scotland for dealing with negligence and fault-based compensation to determine if there is room for improvement
The Group made three recommendations in its preliminary report which were:
- The Executive should agree to make ex gratia payments as a matter of urgency to all people who can demonstrate, on the balance of probabilities, that they received blood, blood products or tissue from the NHS in Scotland before the dates when they were made HCV-safe and who were subsequently found to be infected with Hepatitis C virus
- The Executive should consider how it could fund and develop other mechanisms for supporting people who suffer from HCV including services delivered by voluntary organisations including better information, and better access to information counselling; and the provision of palliative care (this was added at the Final report stage)
- The Executive should invite the Scottish Legal Aid Board to consider developing better procedures for those pursuing clinical negligence cases