No substitute for full compensation

Authored by ARAG

February saw the publication of not just one, but two reports making significant proposals for the NHS. However, both documents also make recommendations that could have a profound impact on the future of justice and compensation for people injured through medical treatment or care.

The first of the two reports to drop was the lighter and glossier Times Health Commission Report which, within its 51 pages, makes sweeping recommendations for NHS reform on subjects as diverse as waiting lists, student loans and digitisation.

Just a few days later, the 180-page Hughes Report was published, promising ‘Options for redress for those harmed by valproate and pelvic mesh”.

While very different in style, tone and scope, each of the two reports offers a list of 10 recommendations, which both involve some form of no-blame compensation scheme.

The authors of these documents aren’t the first to suggest a shift away from litigation as a means of delivering redress for medical malpractice and they certainly won’t be the last, but neither satisfactorily addresses the fundamental principle of fully compensating the victims.

In an article reflecting on the publication of the two reports, the Chief Executive of AvMA, Paul Whiteing highlighted the question always to be found floating, unuttered around such discussions of why injured patients should have to accept less than full compensation for the harm done to them:

“We seemingly must choose between a court-based compensation model or a redress scheme that pays less. But why can’t patients have both? Why must they be short-changed in order to get the justice they deserve? There is no explanation provided for that choice…”

The principle of full compensation is fundamental to justice in the UK, as it is in many other countries, and aims, as far as possible, to restore the injured party to the position they would have been in, had the incident not occurred.

The Times Health Commission’s report recommends the introduction of “no-blame compensation for medical errors with settlements determined according to need…” but fails to explain how “need” might be assessed, how learning from clinical mistakes would be improved or how much less than full compensation an injured party might expect to receive.

As Paul Whiteing points out:

“It seems to me, in all of these debates about redress schemes and No-Fault Compensation… we do not acknowledge the trade-off that will be made. Any scheme created to replace court-based compensation will provide a lesser form of compensation to those harmed. That cannot be right.”

The Hughes Report does at least acknowledge the fact that ‘no-blame’ compensation means less compensation. But it equally fails to explain why such a scheme necessitates abandoning so fundamental a principle of our justice system.

While its solutions are focussed on two very specific types of malpractice, they represent a Rubicon that, once crossed, would inevitably lead to calls for reduced, no-blame compensation to resolve other incidences of clinical negligence.

ARAG’s commitment to extending access to justice as widely as possible has provided us with a unique insight into the importance of clinical negligence litigation in helping victims to rebuild their lives. As well as the big picture of the scale and range of claims that we insure, we also see how vital such claims often are to the people forced to pursue them.

Last year, we highlighted just one case in which one of ARAG’s partner firms secured a multi-million pound settlement that will be used to secure the future of a child born with cerebral palsy as a result of clinical negligence.

Cases like these, of which there are far too many, highlight exactly why the principle of full compensation is so important to claimants and why abandoning it would be catastrophic for them.

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