REPORT OF THE EXPERT GROUP ON FINANCIAL AND OTHER SUPPORT
6. OTHER AREAS CONSIDERED FOR REFORM
6.1 In this chapter, we consider the following:
- Priority Treatment for People who have been harmed by NHS Treatment.
- Reversing the Burden of Proof.
- Retrospective ex gratia payments linked to 'Defective Product Concept'.
PRIORITY TREATMENT FOR PEOPLE WHO HAVE BEEN HARMED BY NHS TREATMENT IN SCOTLAND
6.2 We considered evidence on 2 existing schemes - priority treatment for war pensioners in the UK and for HCV patients in the Republic of Ireland.
Priority Treatment for War Pensioners
6.3 In 1953, hospitals run by the Ministry of Pensions for the treatment of war pensioners were transferred to the NHS. The Government gave an undertaking that there would be priority examination and treatment for war pensioners 3 in NHS hospitals for the condition for which the war pensioners received a pension or gratuity. Priority is not given for unrelated conditions. The Transfer of Functions (Ministry of Pensions) Order 1953 passed the financial and administrative responsibility for the provision of medical and surgical services for war pensioners to Health Departments. In Scotland, funding was transferred to NHS Boards to cover the cost of providing these services.
6.4 Priority in out-patient services provided and funded by the NHS Board of residence include:
supply and repair of artificial limbs, nursing equipment, hospital treatment expenses, dental treatment, eye tests, hearing aids, chiropody, skilled nursing care, orthotic devices, elastic hosiery, wigs and other aids and appliances considered medically necessary for their condition.
The Compensation Scheme in Operation in the Republic of Ireland for HCV Patients
6.5 The Irish government provides ring fenced funding to ensure priority treatment for people who have contracted HCV from blood transfusion or blood product that includes:
- each specialist HCV Unit to have a Specialist Liver Consultant or Hepatologist and a nurse/counsellor
- no patient to wait more than an hour for their scheduled appointment with a clinician
- no patient to wait more than two weeks for an appointment
- each Unit to have a designated ward area for testing, treatment or biopsy
- no patient to wait more than one month for an appointment for counselling
- minimum of five days hospital admission for anti viral therapy if patient requests it
- 6.6 The ring-fenced expenditure associated with providing this priority treatment has risen from 8.34m euros in 1998 to 13.01m euros in 2002 - giving a total to date of 51.65m euros (32.89m).
6.7 We considered whether 'priority treatment should be given to people harmed by NHS treatment where there is unlikely to be liability on the part of the NHSScotland'. Such a scheme could be considered to have the advantage of being in line with the principles of fairness and equity as it could be said that the NHS was prepared to make every effort to minimise the adverse effect of any harm it had caused. However, if treatment were prioritised for all patients harmed by NHS treatment, this would include people who had consented to the risk. We felt that this was undesirable and it would be preferable for any such scheme to be restricted to circumstances where neither the patient nor the health service were aware of the risk involved.
6.8 Furthermore, such a scheme would be resisted by those patients not covered by the scheme but who felt that their clinical need was greater than those receiving the priority treatment.
Conclusion On Priority Treatment
6.9 We recognise that a scheme of priority treatment could be said to be advantageous for a limited group such as war pensioners. However, we do not consider such a scheme would be equitable in the wider context of patients harmed by NHS treatment. We conclude that any prioritisation of treatment should be based on clinical need rather than the fact that injury occurred through NHS treatment. We therefore do not wish to make a recommendation to introduce priority treatment for those harmed by NHS treatment. However, we remain concerned about the need for treatment for people harmed in this way. We feel it is important that the Scottish Executive ensures that resources are made available to provide for treatment and monitors the position.
REVERSING THE BURDEN OF PROOF
6.10 Clinical negligence differs from other personal injury litigation in the parties' greater reliance on expert medical evidence for issues of causation and liability. Causation is more difficult to establish than in other personal injury cases because the effects of the allegedly negligent treatment must be distinguished from those of the patient's underlying condition which gave rise to the need for treatment.
6.11 It has been widely recognised that patients as a group appear to be unusually disadvantaged when attempting to obtain compensation for harm resulting from clinical interventions. The defending NHS professional has ready access to professional advice, expertise and information about the event as well as having first hand knowledge and understanding of what happened. The aggrieved patient, on the other hand, may find it difficult to obtain access to the relevant information and expert legal, medical advice and support.
6.12 We considered the proposal that 'the burden of proof which currently rests with the claimant, should be transferred to NHSScotland'. We also considered evidence prepared by Russell Levy, a partner in the Solicitors firm of Leigh, Day &Co which formed part of a submission to the English Review Group on Clinical Negligence by the Association of Personal Injury Lawyers.
6.13 We recognise that reversing the burden of proof may have certain advantages. It could lead to a less adversarial process as healthcare providers would have an increased interest in seeking to establish what happened at the earliest opportunity. It would also undoubtedly redress the imbalance as the benefit of any doubt would be transferred to the patient.
6.14 However, there are certain disadvantages associated with this proposal. One of the most significant of these is that the patient would still have to prove that they were harmed by the NHS to initiate the claim and to proving fault in clinical negligence. If the test used for taking a claim forward was defined as 'unexpected injury or death' then the problem of dealing with cases that are foreseeable still remains as does that where there is implied consent. Furthermore, in our view, reversing the burden of proof would, in all probability, create a big increase in claims which could in turn place an unmanageable burden on the NHS, especially if the definition of fault was left open.
Conclusion On Reversing The Burden Of Proof
6.15 We conclude that the real problem is that there is an 'inequality of arms' between the claimant and the defender in clinical negligence cases. We consider that this 'inequality of arms' could be addressed in other ways, for example by improving access to medical and legal experts, the extension of the NHS complaints procedure to award ex gratia payments in cases where the claim is in respect of a 'lesser' injury and researching the use of mediation. Recommendations on these issues are included in Chapter 7. A number of Members were in favour of the idea of reversing the burden of proof, but we decided not to recommend this proposal.
RETROSPECTIVE EX GRATIA PAYMENTS LINKED TO 'DEFECTIVE PRODUCT/PRACTICE' CONCEPT
6.16 We considered the pros, cons and potential challenges of introducing a scheme which enables ex gratia payments to be made to patients who had been harmed before 1 March 1988 by a defective product as a result of NHS treatment in Scotland - in circumstances where it is likely that responsibility for the defect rested with NHSScotland.
6.17 Such a scheme would enable payments to people who were infected with HCV as a result of receiving blood transfusions or being treated with blood products, whose infection occurred before the Consumer Protection Act 1987 (CPA) came into force. However, payments would not be provided for those infected after March 1988 who were unable to take legal action under the CPA because of time-bar considerations. That group would remain a disaffected group with a very clear moral argument that they are being treated unfairly.
6.18 We considered whether the scheme would be less arbitrary if it were extended to include defective 'practices' as well as defective products and if it was not restricted to harm incurred prior to March 1988. Such a scheme could also be restricted to cover harm resulting from defective products and practices that were unknown to both the patient and the health service at the time the treatment was administered. It might also allow for other forms of support and not be restricted to financial compensation.
6.19 An obvious difficulty in terms of defining defective practice is that clinical practice changes constantly: thus, a practice which would have been regarded as perfectly normal in the 1950s (such as removing tonsils at an early stage to prevent later problems) can often be frowned upon some years later. In our view, including defective practice as a ground for compensation would run the risk of leading to excessively conservative medicine, with clinicians reluctant to change practice as soon as might otherwise be desirable.
6.20 We also felt that there was likely to be great difficulty in defining the scope of such a scheme in a way that would enable it to be administered effectively, that would not raise issues about the retrospective application of legislation and that would not give rise to an open-ended and potentially very large contingent liability which may adversely affect future spending on health services in Scotland.
Conclusion On ' Defective Product/Practice' Concept
6.21 Having considered these issues very carefully, we conclude that we do not wish to make a recommendation in favour of such a scheme.