Justice, restoration and redress: Error, no-fault and tort-based systems

Justice after harm in health care is often framed in terms of recompense for the patient and redress against a professional. These two facets are linked by requiring the professional to compensate the victim. But that tort-based approach requires proof of causation and fault and that proof is difficult to achieve in a world where systems are complex and the doctor only one of the actors in it. Therefore a number of patients are left without any remedy or relief for what they have suffered. New Zealand’s no-fault compensation de-links the proven failings of health care professionals and the patient’s need for help or restoration, but does it, in doing so, remove a vital element of responsibility and the duty of care from the review and adjudication of medical harm? There are also other needs such as communication and the assurance that others will not suffer the same harms that a system of response to medical error and medical harm needs to meet. This column assesses the New Zealand system against the intuitive profile of justice for medical harm and considers professional answerability and competence.