Ever since I started in practice more than 10 years ago the spectre of a "no fault" system to deal with claims against the NHS has been hanging over those of us who practice in clinical negligence. My reaction over the years, without much clear reflection, has been that this would be a bad thing, encouraging unmeritorious claims. Acting, as I do, for both claimants and defendants I have always taken pride in the fact that it is difficult to run a "bad" clinical negligence claim because of the heavy reliance on expert evidence. As a result most clinical negligence claims ultimately resolve on a basis that is reasonably fair to both parties. As time passes though I increasingly ponder on whether a no fault system would be a good thing.
I know many doctors and the fear of litigation hangs over them keenly. I think this has more to do with the fear of getting care wrong and being responsible for causing harm than anything to do with financial exposure for the NHS.
Over the last few months the news has been full of alleged mishandling of concerns about care, from the publication of Robert Francis QC's report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, to the allegations of the gagging of whistleblowers, to the recent claims involving the Care Quality Commission.
All of these events make me wonder whether ending fault based litigation relating to health care might be part of the solution to increased transparency? We are all stakeholders in the NHS: surely we all have a right to know when the system that we fund goes wrong and to have a sensible discussion about how the repeat of such a failure might be avoided. Just as we all ought to celebrate the success of the NHS in providing the care that it does in these difficult economic times. And perhaps it might be the start of a more forgiving system in which it is recognised that the workers within it aim to do good, but we can all make mistakes.
I can't help but reflect on the question of whether removing the adversarial and fault based component might help us progress towards this aim. Just a thought...