Personal Injury Law Scotland

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Medical negligence no-fault compensation scheme considered for England

The NHS Litigation Reform report, published by The Westminster Health and Social Care Committee earlier this year, suggested implementing a no-fault medical negligence compensation scheme in England.

The purpose of no-fault compensation schemes is that there is no requirement for negligence to be proven before compensation is paid out for injuries. The cause of the negligence must still be put forward, although proving individual fault is not required.

This type of model had previously been considered in Scotland - firstly in 2009, and then again in 2011 when a "no-blame" compensation scheme based on the Swedish model was discussed. It was proposed that compensation (up to the value of £100,000) for harm that could have been avoided due to medical treatment would be allowed, however, treatment received from independent contractors such as private hospitals, GPs, dentists, pharmacists etc would not be allowed within this proposed scheme.

In early 2017, the Scottish government planned to bring early legislation to parliament with a suggested implementation date of 2018-2019. Since then, however, there has been little to no information on the proposed scheme, and it seems these plans have been abandoned.

The main argument made in opposition to a no-fault medical negligence scheme is the costs involved. The Health and Social Care Committee claims that it would cost less to run it, whereas the Association of Personal Injury Lawyers claimed the new scheme's costs would be 13 times higher than the costs of the current scheme.

One proposed way to mitigate increased costs would be to restrict the types of care the injured person would be entitled to receive. This would mean that claiming the full costs of private care would not be allowed, but "top-up care" (care considered beyond that which would be provided by the NHS) would be.

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Motor Accident Solicitors Society Association of Personal Injury Lawyers