Anne-Maree Farrell, ‘No-Fault Compensation for Medical Injury: Principles, Practice and Prospects for Reform’

This paper examines the principles and practice that should underline no-fault compensation schemes for medical injury. It draws on a critical examination of the McLean Report, which was commissioned by the Scottish government to examine whether such a scheme should be established in Scotland. Drawing on a restorative justice model, I argue that a principled approach a no-fault scheme for medical injury requires a redress package that is responsive to what patients say they want as a result of suffering harm through medical treatment. This should involve paying adequate financial compensation; providing appropriate apologies and explanations; and facilitating professional accountability and lesson learning in order to enhance patient safety and improve healthcare outcomes. Where this is not possible within the no-fault scheme itself, then at the very least a more ‘joined-up’ approach needs to be developed, which links the scheme to independent complaints procedures and professional disciplinary bodies. Ensuring that this redress package is provided offers the best chance of ensuring patient satisfaction with the scheme in the long term. Even if such reforms are implemented, the question remains as to whether aspiration will ever match reality. Based on a review of current schemes for medical injury, it is suggested that the full implementation of this type of redress package is likely to remain elusive in practice.

Farrell, Anne-Maree, No-Fault Compensation for Medical Injury: Principles, Practice and Prospects for Reform (October 12, 2014), to appear in P Ferguson and G Laurie (eds), Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean (Aldershot: Ashgate) forthcoming.

First posted 2014-10-15 06:24:19

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