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Blog: A ‘no-fault’ system for clinical negligence claims will not work for anyone

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A ‘no-fault’ system for clinical negligence claims will not work for anyone
Mike Benner | 12 Apr 2022

At the time of writing, news is expected from the committee of MPs which is looking at reforms to the system for claiming compensation against the NHS when patients suffer avoidable harm.

Put bluntly, the aim of the Health and Social Care Committee’s inquiry into NHS litigation is to examine ways in which to make paying for harm to patients cheaper. It is looking at several avenues, but here I want to focus on a speculative ‘no fault’ (sometimes known as an ‘administrative’) system.

Jeremy Hunt, chair of the committee and former health secretary, points to several international examples as possible models for this country. Essentially, they remove the requirement to prove that there has been negligence in patient care. 

There is a raft of reasons why a no-fault scheme in the UK is a bad move for patients, the NHS, and society as a whole. No-fault schemes in New Zealand and Sweden have been cited as models to which to aspire. But what may work there will not work here. The feasibility of a no-fault scheme has been explored and abandoned many times before, including most recently in Scotland.

There would inevitably be an increase in the number of claims if the need to prove negligence is removed and compensation payments would need to be much lower to make the system affordable. This means that patients injured as a result of negligence will not receive full compensation, the importance of which is explained in our research report The Value of Compensation. 

Comparisons with other no-fault models, such as the one in Sweden, fail to take into consideration the considerable difference in spending on social care and benefits. Spending per head on benefits for sick, injured, and disabled people in Sweden is more than double that of the UK*. To introduce such a model in the UK would not only deprive vulnerable patients of full and fair compensation, but then leave them in the hands of a social care and benefits system which is ill-equipped to look after them. It would only compound the injustice.

Some commentators have hailed no-fault systems as positive because they take the focus away from the actions of doctors and other medics, reducing stress for all and leading to less defensive behaviour. But this can lead to less accountability which means that, although compensation will be paid (albeit at a reduced level) lessons will not be learned and failures will be repeated. The NHS would not be any safer than it is now, perhaps less so. And, in any event, it should be obvious that the way to reduce the NHS’s bill for compensating injured patients is to stop harming them in the first place.

And finally, a two-tier system will be created in which patients will receive less than 100 per cent compensation for their medical injuries, while people injured needlessly in car crashes and at work will be compensated fully. That cannot be right.    

-ends-

Sources: * Organisation for Economic Cooperation and Development.

Past blog entries

We need peers to flex their political muscles again, 28 Mar 2022
How to solve a problem like e-scooters, 17 Feb 2022
Accident and negligence: what’s the difference and why does it matter? , 02 Aug 2021
Patient safety problems risk waning public confidence in the NHS , 20 May 2021
Consumers will not benefit from Do-it-Yourself whiplash reforms, 28 Jan 2021
Effects of a change in the discount rate: what happens when a review is expected? , 16 Dec 2020
Three per cent drop in premiums does not reflect massive insurer savings, 09 Nov 2020
What help is out there for families when someone is injured?, 02 Nov 2020

About this blog

Mike Benner

Mike Benner is Chief Executive of APIL and is committed to injured people.