REPORT OF THE EXPERT GROUP ON FINANCIAL AND OTHER SUPPORT
2. SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
2.1 Chapter 3 and Annexes B, D-F set out the evidence considered on no-fault compensation systems in this country and in other jurisdictions. We conclude that no-fault compensation may have advantages, including: speed; ease of access; reduction in legal costs; and reduction of stress on the part of claimants and health professionals. However, there are also disadvantages in that it tends not to encourage improvements of quality of care as a result of lessons learned. Furthermore, in both the Swedish and New Zealand schemes, because the issue of fault has not been entirely eliminated, we feel the end result is a bureaucratic system which tries to tackle the complex issues of negligence and causation without the benefit of legal expertise. We feel that these are major disadvantages.
2.2 We concluded in the Preliminary Report that the issue of no-fault compensation was so extensive and complex that we could not make meaningful preliminary recommendations on it by the end of July 2002 and decided to consider no-fault further in the second part of our work. Following further consideration of the evidence, we conclude that we do not wish to recommend the introduction of a general no-fault compensation scheme. This Report concentrates on recommending improvements which could be made to the current systems for resolving health service disputes.
People who have contracted HIV or HCV as a result of receiving blood, blood products or tissue transfer from NHSScotland
2.3 We considered the arrangements already in place to provide financial support for those infected with HIV through blood, blood products or tissue transfer via the Macfarlane and Eileen Trusts and are impressed by the principles underlying these schemes.
2.4 We conclude that the fact that people who contracted HIV as a result of receiving blood, blood products or tissue transfer from the NHS received compensation whilst people who contracted Hepatitis C virus (HCV) in exactly the same way did not, is inequitable. We are of the view that this inequity should be addressed by introducing new arrangements
The Scottish Legal Aid System
2.5 We noted from the evidence submitted by the Scottish Legal Aid Board (SLAB), that the process of applications for increases in Advice and Assistance and submission of accounts by Solicitors, is to be revised and improved.
Other areas considered for reform
- Priority Treatment for People who have been harmed by NHS Treatment
We considered evidence on a scheme for priority treatment for war pensioners operating within the UK and on a scheme in the Republic of Ireland that allows priority treatment for patients who contracted Hepatitis C from infected blood and blood products. We conclude that priorities for treatment should be assessed on the basis of clinical need only without regard to whether any previous NHS treatment was the cause of the harm.
- Reversing the Burden of Proof
In our Preliminary Report, we briefly considered the concept of reversing the burden of proof so that the onus of proof rests on the NHS rather than the claimant and decided to give it further consideration in the second part of our work. Following further discussion of this subject in Chapter 6, we conclude that although some Members were in favour of the idea of reversing the burden of proof, we do not wish to recommend this in this Report.
- Retrospective ex gratia payments linked to 'Defective Product' concept
We considered the merits of introducing a scheme which would enable ex gratia payments to be made to patients who had been harmed before 1 March 1988 (the date the Consumer Protection Act (CPA) came into force) linked to defective products and practices as a result of NHS treatment in Scotland. We do not wish to make any recommendations on this proposal.
In this context we refer to advocacy by people other than advocates, solicitor-advocates or solicitors. We noted that the Scottish Executive has supported initiatives to promote the successful development of advocacy services. However, we believe there is still a gap in the provision of more specialised advocacy services. We believe the establishment of a Scottish Branch of Action for Victims of Medical Accidents (AVMA), discussed in Chapter 7, would help to fill this gap.
- The NHS Complaints Procedure
In Chapter 7, we set out our views that there are a number of ways to improve the early handling of complaints and claims. These include better training for complaints/claims handling staff; more accessible information for complainants and claimants on clinical issues; 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. We conclude that the Scottish Executive's review of the NHS complaints procedure should address these areas of difficulty.
We were disappointed to note that the remit of the Working Group on the NHS complaints procedure did not include consideration of NHS Trusts and Boards' power to award compensation. We are aware that NHS Trusts and Boards currently have the power to make ex-gratia payments but this power is not used in many cases. We would like to see the use of this power encouraged in respect of ex-gratia payments for 'lesser injuries' including time off work, pain and suffering.
- Quality and Patient Safety Issues
We are aware that much work is currently being done by the Scottish Executive towards achieving a better integration and co-ordination of national organisations with an interest in clinical quality and we welcome the establishment of the new special health board, NHS Quality Improvement Scotland, from January 2003. We note that one of the functions of the new special health board is patient safety and it is expected to manage a service agreement with the NPSA (National Patient Safety Agency).
We conclude that the Scottish Executive should continue to build on the current work on improving patient safety and learning the lessons from things that go wrong.
- Mediation in Health Service Disputes
We considered the evidence in the Report 'Encouraging Resolution, Mediating Patient/Health Services Disputes in Scotland' published by the Royal Society of Edinburgh in February. While we believe that mediation has certain advantages, we conclude that it needs to be thoroughly researched before we can fully recommend it.
We noted that negotiated settlements are taking place already within Central Legal Office and we believe that prior exchange of factual evidence should be encouraged.
- Improving Access to the Litigation Process
We considered the evidence in Chapter 7 to the effect that claimants in Scotland experience difficulty in finding legal/medical experts to pursue their claims. We consider that the establishment of a Scottish branch of AVMA would assist with these difficulties. We also considered evidence from practising Solicitors who outlined the difficulties they encountered in relation to pursuing clinical negligence cases. We understand that Solicitors very seldom get fully paid at Legal Advice and Assistance rates on the investigation of a clinical negligence case, nor do they receive their actual charge out rate for fee paying work so they are unable to obtain sufficient cover for the work that has been done. We conclude therefore that the Scottish Executive, in conjunction with the Law Society and the Scottish Legal Aid Board, should consider increasing the level of fees to solicitors in civil business to enable them to pursue clinical negligence cases, and the level of expenditure for payment of outlays.
Following consideration of evidence on the current litigation process, we conclude that the Coulsfield reforms will eliminate unnecessary delay and expense in routine cases but we consider that a process of judicial case management should be considered for complex clinical negligence cases.
Having considered the evidence in the Consultation Paper by the Lord Chancellor's Department: 'Damages for Future Loss: Giving Courts the Power to Order Periodical Payments for Future Loss and Care Costs in Personal Injury Cases', we conclude that the Scottish Executive should continue to encourage the Central Legal Office to offer structured settlements and to consult publicly on the issues involved with the giving of a power to award periodical payments and structured settlements against the will of the parties.
(Recommendations 1-3 were included in our Preliminary Report and have subsequently been partially modified but otherwise ratified for inclusion in this Report.)
The Scottish Executive should agree to make compensation 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, as follows:
A an initial lump sum of 10,000 to cover inevitable anxiety, stress and social disadvantage;
B an additional lump sum of 40,000 to those who develop chronic hepatitis C to cover pain and suffering;
C in addition, those who subsequently suffer serious deterioration in physical condition because of their Hepatitis C infection e.g. cirrhosis, liver cancer or other similar serious condition(s), should be entitled to full compensation. This compensation should be calculated on the same basis as common law damages taking account of the payments made under A and B above;
D where people who would have been beneficiaries of these arrangements are deceased and their death was not due to the Hepatitis C virus, the above payments should pass to their Executors. Where their death was due to the Hepatitis C virus, the compensation should be paid to their Executor and relatives in the same way as relatives are entitled at common law in terms of the Damages (Scotland) Act 1976 and in addition same sex partners - both to be assessed on the same basis as common law damages.
E people who receive any payment under legal liability arising from alleged negligence or breach of statutory duty, from the Scottish Ministers, or any of the constituent authorities of the NHS in Scotland, in respect of having been infected with Hepatitis C should not qualify for these arrangements;
F people who are already in receipt of payments linked to HIV infection from the Macfarlane Trust, Macfarlane Trust Special Payments Trust, Eileen Trust or the associated government Scheme of Payments should have these payments taken into account when compensation is assessed for the purposes of C;
G people who have become infected with Hepatitis C as a result of the virus being transmitted from a person infected by blood, blood products or tissue from the NHS in Scotland shall be entitled to compensation on a similar basis to those who have been infected directly in this manner.
The Scottish Executive should consider how it could fund and develop other mechanisms for supporting people who suffer from HCV including services delivered by voluntary organisations. In particular, additional support in the following areas should be considered:
(a) Access to understandable information on HCV
(b) Counselling Services
(c) Access to information on benefits available
(d) Advice and assistance in securing appropriate and adequate assurance and insurance
(e) Setting up a pro-active publicity campaign spearheaded by the Health Education Board for Scotland.
(f) Improved access to palliative care and symptom management services when appropriate.
The Scottish Executive should invite SLAB to consider the following:
(a) Proceeding with the development of the template on Advice and Assistance as soon as possible;
(b) Including in the template provision for meeting/negotiation with the defender;
(c) Including in the template provision for class actions as well as individual clinical negligence cases;
(d) Updating the guidelines to the profession;
(e) Introducing an 'interests of justice' test for civil legal aid applications in clinical negligence cases;
(f) Proceeding towards the making of staged payments.
We make the following recommendations in relation to the current dispute resolution procedures:
(a) That the Scottish 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.
(b) The Scottish 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'.
(c) We endorse the recommendation made by the Royal Society of Edinburgh in their Report 'Encouraging Resolution - Mediating patient/health service disputes in Scotland', that the Scottish 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.
(d) The Scottish Executive should consider making initial funding available for AVMA to open a Scottish branch.
(e) The Scottish 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 to enable increased expenditure to be available for payment of outlays in relation to reports, eg medical reports.
(f) The Scottish 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.
(g) The Scottish Executive should encourage the Central Legal Office to continue and develop its practice of offering structured settlements early in the negotiating process.