Peter Gooderham dissects the government’s proposed NHS redress scheme…and finds it wanting
The NHS Redress Act 2006 (NHSRA 2006) received Royal Assent on 8 November 2006. This provides for the establishment of the NHS redress scheme, which will be an alternative means of compensation to the clinical negligence system for some potential claimants. The details of the scheme will be contained within statutory instruments. NHSRA 2006 implements some of the recommendations of Making Amends (Department of Health, 2003).
The reliance on statutory instruments is a major feature of NHSRA 2006. They will be a source of interest to clinical negligence lawyers. The Department of Health seemingly wishes to consult before producing these.
DELIVERY OF TORT REFORM
Making Amends followed several calls for tort reform, notably from Sir Ian Kennedy in Learning from Bristol (Department of Health, 2001, Cm 5207), who recommended replacement of the clinical negligence system with a no-fault compensation scheme. NHSRA 2006, however, specifically requires, in s 1(2), a “qualifying liability in tort”. The government has preserved the Bolam/Bolitho test of the standard of
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