2.1 A No-fault Compensation Review Group, Chaired by Professor Sheila Mclean, Professor of Law and Ethics in Medicine, Glasgow University, established in June 2009, was asked to:
"consider the potential benefits for patients in Scotland of a no fault compensation scheme for injuries resulting from medical treatment, and whether such a scheme should be introduced alongside the existing clinical negligence arrangements."
2.2 The Review Group reported in February 2011 recommending consideration be given to establishing a no-fault scheme to cover all medical injury in Scotland (not just NHS) along the lines of the Swedish no-blame scheme as follows:
"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"
(For reference, all 10 original recommendations are set out in Annex A.)
2.3 A public consultation on the Review Group's recommendations was then undertaken, concluding in December 2012. The responses to that consultation suggested that not all of the original Review Group recommendations were workable or affordable. There were particular concerns about Recommendation 2 and how this might work in practice given that all procedures carried a risk. It was suggested that the 'avoidability' test should be used and that it would be difficult to identify any other just or workable criteria for eligibility. The consultation report and Scottish Government response published in April 2014 highlighted this. (The papers published so far in relation to this work are available on the Scottish Government website at: http://www.gov.scot/Topics/Health/Policy/No-Fault-Compensation.)
2.4 To coincide with the publication of the Scottish Government consultation report and response in April 2014, Alex Neil MSP, the then Cabinet Secretary for Health, confirmed the Scottish Government's commitment to ensuring that:
'any patients harmed as a result of poor clinical treatment have access to redress in the form of compensation, where this is appropriate, without the need to go through lengthy court processes'.
2.5 Work has since been undertaken to explore the complexities in full and to shape and scope a proposed scheme which will sit alongside, rather than replace the existing CNORIS scheme, offering an alternative to litigation. This consultation paper now seeks views on the draft outline proposals from that work.