4.1 In the first instance it is proposed that the Redress Scheme would be restricted to payment of compensation where the harm has been or is likely to be, experienced by the person for a continuous period of at least 6 months and is as a result of clinical treatment administered by directly employed NHS staff in Scotland. The scheme will not be retrospective (i.e. will cover clinical events that occur after the date of introduction). It will take account of health and social care integration and therefore clinical treatment provided as part of an integrated service.
4.2 The No-fault Review Group also recommended:
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.
4.3 However, in response to the earlier consultation a good deal of concern was expressed about the cost and complexity of introducing a scheme which extended beyond the NHS. It is therefore proposed that in the first instance the scheme be limited to clinical treatment provided by directly employed NHS staff in Scotland (independent contractors - GPs, dentists, opticians and pharmacists - would be excluded along with private providers (see definition in Annex D) with options to extend, if considered appropriate, at a later date.
Question 5 - Do you support the proposal that the proposed non-retrospective scheme should in the first instance be restricted to clinical treatment provided by directly employed NHS Staff in Scotland?
If no, please briefly explain why:
4.4 Currently around 70% of all awards made under the current system are under £100,000. We are proposing that the redress scheme will handle claims up to £100,000.
4.5 The cap of £100,000 on the level of award payable under the scheme (including cost of care packages and damage for loss of earnings) will effectively eliminate the most severe and complex cases (e.g. brain damaged children) and those cases where continuing care is appropriate. These cases would continue to be handled through the legal system. (Please also see proposals in relation to continuing care costs explained at Item 6 below.)
Question 6 - Do you support a cap of £100,000 on the level of award under the proposed scheme?
If no, please briefly explain why:
4.6 The no-fault review Group Recommendation 5 was:
"We recommend that any compensation awarded should be based on need rather than on a tariff based system."
4.7 We are proposing that the level of compensation for injuries sustained will be based on existing principles including case precedent and the Judicial College Guidelines (formerly the Judicial Studies Board Guidelines). Compensation for patrimonial loss (e.g. past and future wage loss, care and accommodation costs etc.) will require to be assessed on an individual basis often with regard to expert opinion.
Question 7 - Do you agree that levels of award should be based on the Judicial College Guidelines with patrimonial loss assessed on an individual basis?
If you disagree please briefly explain why:
4.8 The Breach of Duty of Care principles would continue to be applied to claims being handled through the legal system. However, these claims will benefit from the introduction and compulsory use of a Pre-action Protocol currently being developed by The Personal Injury Committee of the Scottish Justice Council. The protocol will be used within the existing Clinical Negligence and Other Risks Indemnity Scheme (CNORIS) and will allow for speedier and more transparent outcomes in clinical negligence legal claims.
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