No-fault compensation for medical injury: Paper by Anne-Maree Farrell

Available through SSRN is a new paper by Associate Professor Anne-Maree Farrrell (Monash University), entitled No-Fault Compensation for Medical Injury: Principles, Practice and Prospects for Reform.

The abstract indicates:

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.

The author concludes:

Rhetoric does not match reality in the absence of generous national social security provision and a more integrated approach to dealing with (negligent) adverse events in healthcare. In the circumstances, such schemes are unlikely on their own to offer a panacea to the long-running
problem of how best to redress the harm caused to patients through medical treatment.

The paper is to appear in P. Ferguson and G. Laurie (eds), Inspiring a Medico-Legal Revolution: Essays in Honour
of Sheila McLean (Aldershot: Ashgate) (in press).

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