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The Health and Social Care (Community Health and Standards) Act 2003 provides for the establishment of “foundation hospitals.” Such a hospital would be an independent corporate body and would be regulated by another corporate body: The Independent Regulator of NHS Foundation Trusts. It would have a separate legal personality, and the purpose is to “free up” successful Trusts from bureaucracy and enable the local community to have some control. Although services will still be provided without charge, the proposal is highly controversial as many see it as a step towards privatising the NHS.Google Scholar

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There is anecdotal evidence that similar difficulties are experienced in claims for compensation resulting from occupational stress, the limits of which were tightly circumscribed by the Court of Appeal case of Sutherland v. Hatton (2002) 2 All ER 1, and which were approved, in principle, by the House of Lords in Barber v. Somerset County Council (2004).Google Scholar

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This is substantiated by the very high level of damages that used to be awarded in the UK in libel cases, which are usually tried by juries. See Sutcliffe v. Pressdram Ltd. (1991) 1 QB 153 CA, and s. 8 Courts and Legal Services Act 1990.Google Scholar

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Note that aggravated damages can be awarded where appropriate in statutory discrimination cases (see, for example, Armitage v. Johnson (1997) IRLR 162).Google Scholar

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Section 100 of the Courts Act 2003 amends the Damages Act 1996 (ss 2, 2A and 2B). There has been some criticism that the amendments do not adequately address the problem of what are appropriate circumstances for varying the amount of periodical payments to account for changed circumstances (see McGregor, H., 17th ed., McGregor on Damages [London: Sweet & Maxwell, 2003]: Paragraph 35–015). Note too that damages can be payable under a “structured settlement” which, put simply, is part lump sum and part periodical payments and again is a device to avoid the problems of uncertainly as to future needs and life expectancy.Google Scholar

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This resulted in The Kennedy Inquiry: Report of the Public Inquiry into Children's Heart Surgery at Bristol Royal Infirmary 1984–1995: Learning from Bristol (London: Department of Health, 2001).Google Scholar

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The CMO's Report puts the total cost of a no fault scheme at £4 billion, but it has been estimated as £2.1 billion (see Fenn, P. et al., “The Economics of Clinical Negligence Reform in England,” The Economic Journal 114 (2004): F272.CrossRefGoogle Scholar

The Human Rights Act 1998 provides for direct reliance in the UK courts upon most of the European Convention on Human Rights. Article 6 which protects the right to a fair trial would be engaged here (this question does not arise in the CIC Scheme because the scheme does not preclude the victim taking court action; it is simply that for most victims this is not a viable course of action because the perpetrators of these crimes are usually impecunious).Google Scholar

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These cases are regarded differently because of the particular difficulties in proving causation and negligence, and in the fact, that, under the current tort system, very substantial damages might be recovered in one case, and nothing in another when the boundary between the two is slight indeed. The financial elements in the proposed redress scheme are significantly higher than in the general scheme.Google Scholar

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Of course, there are other situations in common law negligence where there is a pre-existing relationship such as employer/employee and where the law might be framed differently from, say, a running down action, although it does not fall into the “benevolent” category as such. The purpose of this article is not to provide a taxonomy of negligence claims but to speculate briefly on whether there might be an argument for treating medical cases differently, even though ultimately they might not fall into a unique category.Google Scholar

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