Former Court of Appeal Judge, and brainchild behind the biggest reforms the personal injury sector has seen in recent years, Sir Rupert Jackson, has recently tabled suggestions on further radical reforms, during a speech at the Medico-Legal Conference.
Jackson anticipates that his proposals would not only make accessing compensation quicker and easier, but also, less traumatising for the professionals on the other side.
Clinical Chamber of the Tribunals Service
The first of his proposals was the formation of a Clinical Chamber of the Tribunals Service, which would be responsible for both the civil claim and the disciplinary process. He believed that any decision reached would also carry more weight with the CPS, coming from a more authoritative source.
Jackson pointed out that the time and costs saved by this would also assist with the implementation of the fixed costs scheme, currently being consulted on by the MOJ.
Test for Medical Negligence
Perhaps the most radical of his proposals, was that the long-established test for medical negligence, which considers what standard a reasonable body of professionals with the same skill would have reached, should be replaced, by asking, simply: Has the patient suffered a ‘reasonably avoidable injury’?
He believes the benefits of this test to be twofold, by escaping the potential for compensation to be refused on the grounds that a provider was legitimately overworked and by shifting the focus from blame, to rectification.
Tariff-Based Compensation Scheme
Recognising that this would increase the volume of successful claims, he proposed that it be complemented by a tariff-based compensation scheme, whereby that ‘an equitable distribution of the available compensation amongst all deserving claimants’ is achieved, ‘in place of the present system in which a smaller proportion of deserving claimants recover higher damages’. Akin, on the face of it, to the Government’s current system for compensating victims of violent crime, the Criminal Injuries Compensation Scheme. It is important to recognise that this also represents a radical shift, from a system focused on putting victims, back where they would have been had the incident not occurred, to one where the amount of compensation is determined, not by the injured person’s specific needs, but by the availability of funds, as a whole.
Too Early for Further Radical Reforms
Pryers supports the aim of ensuring that deserving people get the compensation that they deserve more quickly. We also recognise that the vast majority of people working in the medical profession are there because of a desire to help people, so anything that can be done to reduce the trauma of the process on them, when mistakes do inevitably occur, should be encouraged. However, it seems premature to be proposing more radical reforms, whilst significant changes are still under consultation; it risks that process not getting the attention that it requires.
Although any changes will have an obvious impact on those working in the relevant sectors, it is the injured people at the centre of the claims, who have already suffered the misfortune of a medical mistake, who are likely to be the most affected. Although the current process might sometimes be long and costly, it is largely successful – and this should not be taken for granted. With the Government’s poor track record with compensation schemes in mind, it is hard to imagine how something as complex as medical negligence can be condensed into a tariff-based-scheme, without having a detrimental impact on the victim.
