Tuesday, November 16, 2010

Proposals to abolish legal aid will deny access to justice for many injured people

Yesterday, the Lord Chancellor and Secretary of State for Justice Kenneth Clarke made two announcements that would, if implemented, seriously affect access to justice for people injured in the course of medical treatment.  Firstly he announced the proposal to end legal aid for clinical negligence, education and welfare claims this will have an impact on all people with disabilities including those injured by medical accidents. 

The second proposal is to end the system where claimants can recover nearly all their costs from defendants if their case is successful.  If the reform goes ahead, only about half of the costs will be recovered leading to claimants suffering large deductions from their damages, damages that are designed to compensate them for their injury and pay for accommodation and care they need as a result of that injury.

This second proposal comes from the recommendation of the Review of Civil Litigation Costs by Sir Rupert Jackson published by the Labour government in December last year.  However it is clear that Sir Rupert did not envisage abolition of legal aid to go hand in hand with his recommended reforms as in his report he says:-

'I do not make any recommendation in this chapter for the expansion or restoration of legal aid.  I do however, stress the vital necessity of making no further cutbacks in Legal Aid availability of eligibility... the maintenance of legal aid at no less than the present levels makes sound sense and is in the public interest '

While this second proposal will only affect claimants whose solicitors act for them under a no win no fee arrangement, the number of people whose legal fees are covered in this way will increase considerably if legal aid is abolished.  These reforms will have the greatest impact on children and the most seriously injured.

Peter Walsh our CEO has made the following statement:-

"AvMA are urging members of the public to respond to the consultation on plans to cut legal aid completely for clinical negligence cases.  If implemented, the proposals could add millions of pounds to the NHS bill for settling negligence claims, as well as making access to justice impossible for many would-be claimants.  This is because people will be forced to enter into no-win no-fee agreements with lawyers, which are much more expensive to settle than legal aid cases.  For some people even this will not be an option, because other planned changes in Lord Jackson’s report will mean that no-win no-fee agreements are outside the reach of many people. 

This is not joined-up government.  Whatever the Ministry of Justice would save by scrapping legal aid will cost the NHS many times more.  At the same time, the overall effect of changes will hit the poorest hardest, denying them access to justice even if they have been seriously harmed by negligence in the NHS”.

1 comment:

  1. Those people who survive medical accidence with the most serious injuries tend to be infants who are damaged at or around the time of birth. They therefore become the most vulnerable members of society as they need to rely upon ‘care’ which can not be provided by families alone. We are in a climate where access to basic levels of care through local authorities is only achievable by parents who need to have entire personality changes to become ‘guerrilla parents’ or those who can gain funding to support legal action through the legal Services Commission or of course those who can afford to fund themselves (who are they).

    Families who have experienced this level of injury are now at risk of not being able to gain either the answers that they so desperately want about the catastrophic event that changed their lives or access to the judiciary to help them in accessing basic services at an education and welfare level (services that are being cut to a dangerous level).

    I have always felt that by not making medics personally responsible for the outcome of their negligent practice we are not awarding them the professional status of others whose negligence has similar effects. By abolishing the system that at least sees organisations as responsible we appear to be removing responsibility for negligence or even bad practice. The government are removing the safety nets across the board and the mechanism for allowing many parents the answers that they need to be able to move past the event. For parents of injured children and families of injured people clinical negligence litigation is the equivalent of an inquiry to a national disaster. Who would deny them an inquiry, without which how can they make sense of events?