No-fault NHS compensation system: Equality but not equity

The recent Times Health Commission Report with ‘10 recommendations to save the NHS’ contains many sensible proposals, but the idea of introducing a no-blame compensation scheme for medical errors is misguided and would disbenefit as many as it helps.

This proposal reportedly has the backing of chancellor Jeremy Hunt and health secretary Victoria Atkins, to reduce spiralling NHS negligence bills and help the NHS learn from mistakes ‘rather than getting lawyers involved’.

Families would no longer need to endure lengthy litigation to prove negligence and access compensation, the theory goes. Instead, compensation payments would be standardised and based on need.

It is all too easy to cast claimant medical negligence lawyers as the bogeyman when it comes to the growing amounts the NHS pays in compensation. Yet many will tell you that it is actually often NHS Resolution’s conduct that unnecessarily increases litigation costs in being slow to admit fault, or, in some instances, settling liability admitted damages assessment cases just days before trial.

A no-fault tariff based system would simply replace one flawed model with another. It might seemingly offer equality, but it would not offer equity. It would likely result in the same quantum of funds being spread more thinly around more people. Removing the need to prove negligence would inevitably increase the number of claims and then to make the system affordable, compensation payments would have to be lower. Everyone suffering an avoidable adverse event would get a little, more quickly, but those who suffer serious harm, for example the family of a child with cerebral palsy, would massively lose out. It is inconceivable that a bigger pot overall would be available for injured claimants, and that certainly does not appear in any of the no fault proposals that I have seen.

Whilst some who are currently denied compensation would no doubt benefit, there would be many more seriously disabled people who would lose out and would not be able to access the 24 hour care and support they need. In contrast, those injured in a non-medical accident, such as a road traffic incident, would still have access to a legal system where full compensation for their injuries could be sought.

Examples are often made of no fault systems in other jurisdictions. However, such comparisons are flawed without properly considering that countries such as Sweden have a different social welfare structure and the fact the scheme there is partly funded by insurance payments. With lower compensation payments very likely under a no-fault system in the UK, those seriously injured would unfortunately be left reliant on a level of benefits which cannot properly support their needs.

Most medical negligence lawyers agree we need cultural change within the NHS; a willingness to be open about what went wrong and to learn from mistakes would undoubtedly help to bring down the current compensation bill. It would also help those who are deserving of compensation to be assessed on needs more quickly. However an inevitably poorly funded, inflexible and indiscriminate tariff scheme is no magic solution.

Further information

If you have any questions, please contact James Bell in our Medical Negligence and Personal Injury team.

about the author

James is the head of our Medical Negligence and Personal Injury practice and joined the firm in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and personal injury cases for over 30 years.