No-Fault Review Group Recommendations
(Please note these are the original Review Group recommendations - not all will be accepted and are subject to change as some are considered unaffordable and/or unworkable when broader current conditions are taken into account.)
Recommendation 1 - We recommend that consideration be given to the establishment of a no fault scheme for medical injury, along the lines of the Swedish model, bearing in mind that no fault schemes work best in tandem with adequate social welfare provision;
Recommendation 2 - We recommend that eligibility for compensation should not be based on the 'avoidability' test as used in Sweden, but rather on a clear description of which injuries are not eligible for compensation under the no fault scheme;
Recommendation 3 - We recommend that the no fault scheme should cover all medical treatment injuries that occur in Scotland; (injuries can be caused, for example, by the treatment itself or by a failure to treat, as well as by faulty equipment, in which case there may be third party liability);
Recommendation 4 - We recommend that the scheme should extend to all registered healthcare professionals in Scotland, and not simply to those employed by NHSScotland;
Recommendation 5 - We recommend that any compensation awarded should be based on need rather than on a tariff based system;
Recommendation 6 - We recommend that claimants who fail under the no fault scheme should retain the right to litigate, based on an improved litigation system;
Recommendation 7 - We recommend that a claimant who fails in litigation should have a residual right to claim under the no fault scheme;
Recommendation 8 - We recommend that, should a claimant be successful under the no fault scheme, any financial award made should be deducted from any award subsequently made as a result of litigation;
Recommendation 9 - We recommend that appeal from the adjudication of the no fault scheme should be available to a court of law on a point of law or fact.
Recommendation 10 - We recommend that consideration should be given to our analysis of the problems in the current system, so that those who decide to litigate can benefit from them.