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Clinical negligence: Scottish government response to consultation

In April, the Scottish Government published its report on this Consultation. The No Fault Compensation Review Group was established in 2009 to consider the potential benefits of a no fault scheme for patients in Scotland and whether such a scheme should be introduced alongside the existing clinical negligence arrangements. The Review Group’s report was published in February 2011 and recommended that consideration should be given to establishing a no fault scheme for clinical injury, along the lines of the “no blame” system operating in Sweden. 

The system recommended would mean that, although a claimant would not have to establish that any individual had been negligent, there would have to be a link between the activity or failure and the resulting harm. 

Key recommendations:

  • Eligibility to claim should not be based on the “avoidability” test used in Sweden, but instead there should be a clear description of the injuries that are not eligible for compensation under the scheme

  • The scheme should cover all medical treatment injuries occurring in Scotland, including those caused by failure to treat or by the use of faulty equipment

  • The scheme should extend to all registered healthcare professionals in Scotland, not just employees of NHS Scotland

  • Compensation should be awarded based on need, rather than a tariff based system

In total, 51 responses were received to the Consultation. The Report analyses the responses received and, while it is noted that significant concerns have been raised about the introduction of a no fault compensation scheme, particularly in relation to the costs and complexities involved, the Report confirms the Group’s commitment to ensuring that patients harmed as a result of clinical treatment should have access to some form of redress without going through lengthy court proceedings.  The Group intends to continue working towards developing a fair system, and will monitor the impact of the reforms to be introduced by the Courts Reform (Scotland) Bill on improving the existing system for making claims.

Further investigations will now be carried out into the development of a no fault system in Scotland, particularly with regard to the cost involved and appropriate eligibility criteria, and there will be further consultation on the Group’s draft proposals in this regard.

View the Consultation Report:


For further information please contact Catherine Hart, Associate on 0141 228 8000.

By Catherine Hart

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.