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No-fault NHS compensation system: Equality however not fairness | Medical Negligence and Private Damage Weblog | Kingsley Napley

This text was initially printed within the Regulation Society Gazette on 1st April 2024 No-fault NHS compensation system: Equality however not fairness

The current Occasions Well being Fee Report with ‘10 suggestions to save lots of the NHS’ comprises many smart proposals, however the thought of introducing a no-blame compensation scheme for medical errors is misguided and would disbenefit as many because it helps. 

This proposal reportedly has the backing of chancellor Jeremy Hunt and well being secretary Victoria Atkins, to cut back spiralling NHS negligence payments and assist the NHS be taught from errors ‘reasonably than getting attorneys concerned’.

Households would now not must endure prolonged litigation to show negligence and entry compensation, the speculation goes. As a substitute, compensation funds can be standardised and based mostly on want.

It’s all too simple to forged claimant medical negligence attorneys because the bogeyman with regards to the rising quantities the NHS pays in compensation. But many will let you know that it’s really usually NHS Decision’s conduct that unnecessarily will increase litigation prices in being gradual to confess fault, or, in some cases, settling legal responsibility admitted damages evaluation instances simply days earlier than trial.

A no-fault tariff based mostly system would merely change one flawed mannequin with one other. It would seemingly provide equality, however it could not provide fairness. It might doubtless end in the identical quantum of funds being unfold extra thinly round extra individuals. Eradicating the necessity to show negligence would inevitably enhance the variety of claims after which to make the system inexpensive, compensation funds must be decrease. Everybody struggling an avoidable hostile occasion would get just a little, extra rapidly, however those that undergo severe hurt, for instance the household of a kid with cerebral palsy, would massively lose out. It’s inconceivable {that a} greater pot total can be accessible for injured claimants, and that definitely doesn’t seem in any of the no fault proposals that I’ve seen.

While some who’re presently denied compensation would little question profit, there can be many extra critically disabled individuals who would lose out and wouldn’t have the ability to entry the 24 hour care and assist they want. In distinction, these injured in a non-medical accident, similar to a highway visitors incident, would nonetheless have entry to a authorized system the place full compensation for his or her accidents could possibly be sought.

Examples are sometimes fabricated from no fault techniques in different jurisdictions. Nevertheless, such comparisons are flawed with out correctly contemplating that international locations similar to Sweden have a distinct social welfare construction and the actual fact the scheme there’s partly funded by insurance coverage funds. With decrease compensation funds very doubtless beneath a no-fault system within the UK, these critically injured would sadly be left reliant on a degree of advantages which can’t correctly assist their wants.

Most medical negligence attorneys agree we’d like cultural change throughout the NHS; a willingness to be open about what went flawed and to be taught from errors would undoubtedly assist to carry down the present compensation invoice. It might additionally assist those that are deserving of compensation to be assessed on wants extra rapidly. Nevertheless an inevitably poorly funded, rigid and indiscriminate tariff scheme is not any magic answer.

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When you’ve got any questions, please contact James Bell in our Medical Negligence and Private Damage staff.


in regards to the writer

James is the top of our Medical Negligence and Private Damage apply and joined the agency in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and private harm instances for over 30 years.


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