The UK Parliament’s House of Commons Health and Social Care Committee recently published a report on the safety of maternity services in England. As part of the Department of Health’s forthcoming proposals for clinical negligence reform, the Committee recommended establishing a Swedish-style no-fault compensation scheme in maternity cases. It was suggested that this would offer a better way forward in addressing the needs of injured patients and their families.
In the second of a two-part blog series (read part one here) arising from the report’s findings, we examine key elements that would need to be taken account of in designing a no-fault scheme for avoidable harm arising in maternity care. In doing so, we recognise that such examination is also highly relevant to any consideration of clinical negligence reform involving no-fault schemes for medical injury in the National Health Service (NHS) more generally. We conclude that there are serious questions to be asked about the adequacy and quality of justice offered to injured patients and families under no-fault schemes. As such, they are unlikely to offer a panacea to the identified problems with the current clinical negligence system in the UK.
Ease of access
No-fault schemes can provide a clear roadmap for submitting and resolving claims, offering quicker and easier access to justice than is currently the case for clinical negligence claims. The trade-off is that successful claimants under such schemes are usually compensated significantly less than they would be if they pursued a claim through the court in line with a corrective justice approach.
This raises the question as to whether financial compensation that is inadequate to cover patients’ injuries represents a suitable trade-off for quick and easy access to no-fault schemes, particularly in cases where the injuries are life-limiting or otherwise impact on quality of life.
Eligibility criteria and causation
The nature and scope of access to justice will be determined by no-fault schemes’ eligibility criteria, including elements such as the types of injury covered, the degree of injury or disability that must be suffered, or time limits to bring claims. Depending on the design of the scheme, such criteria can operate to screen out a substantial number of claims. For example, the Welsh NHS patient redress scheme still requires that injured patients establish a ‘qualifying liability in tort’. In contrast, Nordic no-fault schemes for medical injury rely on the notion of ‘avoidability’, where medical injury would not have occurred in the hands of the best practitioner. In addition, claimants still need to establish the notoriously challenging element of causation. In sum, how a no-fault scheme’s eligibility criteria are designed can operate in practice to restrict access to justice for injured patients in practice.
Greater access and broader eligibility criteria under no-fault schemes are likely to result in a substantial increase in claims, resulting in significant administrative costs and issues with affordability in the longer term. While we accept that there is a need to strike a balance between managing costs and designing a system accessible to as many as possible, it is vital that delivering on high quality justice to injured claimants should remain central to the operation of such a scheme.
Medico-legal representation and adjudication processes
Clinical negligence claiming has long been acknowledged as a complex and specialist area of personal injury litigation, given the difficulties in establishing breach of the duty of care and causation. It is therefore vital that patients can avail of suitable medico-legal advice to advise on their prospects of success. If the Department of Health continues to focus on minimising the costs of such advice as part of its forthcoming reform proposals, this would raise serious concerns not only about access to, but also the quality of, justice that might be delivered to injured patients and families under a no-fault scheme.
Account must also be taken of the UK’s ECHR obligations, in particular Article 6, the right to a fair trial. As a well-established right, any attempt to remove it would result in a significant backlash. In practice, this means that injured patients will continue to have the option of pursuing clinical negligence claims through the courts and/or challenging decision-making regarding claims made under no-fault schemes. Again, this is likely to impact on questions of affordability in the longer term.
Learning from mistakes and professional accountability
Empirical evidence points to learning from mistakes and professional accountability as crucial in providing redress for injured patients and their families.
As highlighted in evidence given to the Committee about the Swedish approach, there are clearly enhanced opportunities for learning from mistakes under no-fault schemes, although whether this is fully realised in practice is open to debate. As highlighted in New Zealand no-fault scheme, striking the ‘right balance in the trade-off between accountability and learning’ has proved difficult.
The Committee’s recommendation for a no-fault scheme in maternity cases is one that is worthy of consideration. However, careful consideration needs to how such schemes are designed, taking account of the key elements outlined above. Otherwise, it is unlikely to achieve just redress for injured patients and their families.
Professor Anne-Maree Farrell is Chair of Medical Jurisprudence at Edinburgh Law School. She was previously a lawyer in private practice specialising in clinical negligence and medical law related litigation. She has published in the areas of clinical negligence, patient redress and safety, as well as no fault systems for medical injury. Email: A.Farrell@ed.ac.uk
Rhiannon Frowde is a Research Associate in the School of Law at the University of Edinburgh, having graduated from her LLM in Medical Law and Ethics in 2020. She is pursuing a career at the Bar specialising in clinical negligence and personal injury, currently reading the BPTC and due to start pupillage at Hailsham Chambers in 2022.
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