CAN THE LORDS RESUSCITATE LEGAL AID IN CLINICAL NEGLIGENCE?

As the Legal Aid Sentencing and Punishment of Offenders Bill (“the Bill”) makes its way through parliament, it seems that support to keep Legal Aid in Scope for Clinical Negligence is gaining momentum.

Lord Justice Jackson, author of the somewhat controversial changes to Conditional Fee Agreements, which alongside the proposed cuts to Legal Aid, create a double whammy effect to funding, has himself spoken out.  He comments that Legal Aid should be retained, especially in matters of Clinical Negligence.

AvMA has also launched its own attack on the decision to cut this funding lifeline, by commencing Judicial Review proceedings challenging the decision at grass roots, citing the MOJ’s decision as based on unfair and irrational criteria (see press release).

Now, the Lords have joined the debate.   The Law Society Gazette (29 September 2011, page 3) reports that Lord Carlile of Berriew QC (Liberal Democrat) believes that there will be enough support from all sides to change the Bill.  Lord Carlile adds “Clinical Negligence cases are an example …in which disbursements would work up front; cases in which you don’t know you’re going to have a successful claim, all you can say is there might be one until some expert evidence has been obtained.” (Law Society Gazette, 29 September 2011, page 3).

This is echoed by Tom Brake MP (also Liberal Democrat) who shares a sympathetic approach in keeping Clinical Negligence in Scope, hinting at what appears to be the inevitable scrutiny of the Bill by the Lords.

Our Blog previously reported (03 March 2011) the Judiciary’s condemnation of the removal of Legal Aid funding in Clinical Negligence citing “potential injustice for a small group of vulnerable Claimants if the present proposal is implemented” (para 47, Report).

Let’s make sure this momentum keeps building and bring the issue of access to justice to the forefront of debate.

AvMA has been working hard to get the message out that access to justice will undoubtedly be compromised should the changes stand.  Please see our media coverage links below:

Independent

Law Society Gazette

BBC News

BBC 

STOP PRESS!! BBC Radio Four “You and Yours” will be discussing Clinical Negligence and Legal Aid on Monday 03 October 2011. Peter Walsh from AvMA will be being interviewed at approximately 12:30.

Also visit the campaign section of our website to find out how the changes will effect you and what you can do to help

The News International Smokescreen

The revelation that journalists and private investigators working for News International have been hacking into mobile phone messages and using underhand means to obtain confidential medical records and financial information is truly shocking.

However, what is equally shocking is that leaders of our 3 major political parties are using these revelations to court public opinion.  Further the media furore is a smoke screen behind which 3 Bills going through Parliament which will have a more significant and far reaching effect upon all of us.

The Legal Aid, Punishment of Offenders Bill which has already reached the Committee stage in the Houses of Parliament seeks to deny justice to the most injured and vulnerable of our society.  If all the clauses in this Bill become law people with serious and persisting injuries, caused through the negligence of healthcare workers will be denied access to justice.

At present all children and any adult who qualifies financially is entitled to legal aid to investigate and pursue a claim for compensation if they have been injured in the course of healthcare.  The Legal Aid, Sentencing & Punishment of Offenders Bill seeks to take away that right at a stroke.  The Government explains to us that this is alright because solicitors will act for those people on a no win no fee agreement.  The situation is no so simple, first an individual may have to pay two to three thousand pounds for initial legal costs before a solicitor will consider entering into a no win no fee agreement.  And then if the case is successful up to a quarter of their damages may be needed to pay for the solicitor’s success fee.

The Public Bodies Bill will postpone the appointment of a Chief Coroner for the foreseeable future.  Following a protest led by the charity INQUEST and supported by AvMA and The Royal British Legion, the act to abolish the role of Chief Coroner was amended but the amendment to defer appointment into the future is far from satisfactory.  At present it is very difficult to challenge a Coroner’s decision, whether to hold an inquest or not, whether to admit certain evidence at the inquest or a verdict.  At present the only way to review a coroners decision is by judicial review.  One of the key roles of a Chief Coroner was to consider appeals (by family and friends of the deceased) on these decisions made by coroners.

Finally, the Health and Social Care Bill.  Many will be aware that following challenges to the proposal that consortiums led by GPs were to take over as the purchasers of care for their patients the Government undertook a review.  However, the decision on who leads the consortium of purchasers has only been modified slightly.  It may, at first seem to many that this commissioning has little to do with an individual's healthcare.  However, if a patient neeeds day surgery and finds instead of being referred locally they must travel to a hospital 30 or 40 miles away simply because that hospital will do the procedure cheaper the patient may feel that they are very significantly affected by this change in the law.

This charity will continue to tweet, blog and comment in opposition to such changes that affect the life, liberty and access to justice for the citizens of this country, in particular for patients.  How can it be that a National Health Service, provided by the Government for its people can injure one of its patients yet the Government itself denies access to justice through removal of legal aid?

In addition to our activities on the social media sites we are also working behind the scenes to lobby MPs, brief journalists and press to provide evidence to Government Select Committees.

Our Legal Director, Catherine Hopkins will be giving evidence to the Scrutiny Committee on the Legal Aid, Sentencing & Punishment of Offenders Bill on Thursday 14^th July.

LORD JUSTICE JACKSON’S CFA PROPOSALS TO PROCEED

The Government has announced its intention to follow Lord Justice Jackson’s proposed reforms to Conditional Fee Agreements (CFA), otherwise known as “no win, no fee”, for Clinical Negligence Claims.

Read the Government’s full response here.

The reforms to the CFA and After the Event insurance (ATE) regimes will no doubt affect how Claimants proceed with their Clinical Negligence claims, as lawyers will need to re-evaluate best practice for funding and running such cases.

Over 600 formal responses were received by the Ministry of Justice in reply to the consultation.  AvMA’s response can be found here.

As a result, the Government intends to implement all of Lord Justice Jackson’s major proposals and anticipates this to be in or around autumn 2012 after receiving assent.

The main changes to the present ‘no win, no fee’ arrangements are:

1. When successful in their claim, Claimants will pay their solicitors a success fee, which is a percentage mark-up on the solicitor’s basic charges.  The solicitor’s success fee will be taken out of the Claimant’s damages.  At present the success fee is paid by the losing party.

2. Premiums for ATE insurance policies, which are taken out to protect the Claimant against paying the Defendant’s costs should they lose their case, will no longer be paid by the loser (the Defendant) at the end of the case.

3. General damages (that is money for pain and suffering endured, which does not include any pecuniary loss flowing from the injury) will be increased by 10% to help Claimants cover the cost of their success fees and insurance premiums mentioned above.

4. No more than 25% of a Claimant’s general damages and past losses can be used to pay the Claimant’s solicitor’s success fee and the Claimant’s insurance policy premium.  This does not include future losses, which are protected from such a deduction.

5. Qualified One Way Costs Shifting (QOCS) is to be introduced.  This means that if a Claimant loses a case brought against a doctor or hospital, under certain (qualified) circumstances, the usual rule that the loser pays the winner’s costs will not apply.  The Claimant will not have to pay the Defendant’s costs.  It is not entirely clear when a Claimant will not have the benefit of this protection, although the government has said it would be when a Claimant was conspicuously wealthy or when there is some misconduct on the Claimant’s part.

6. There will be a new test of proportionality in costs assessment.  Only reasonable and proportionate cost may be recovered from the losing party.

7. There will be a change to the prescribed rates of which successful litigants in person can recover.

8. There will be a change to the rules governing offers to settle (called Part 36 offers).  The aim is to have equally effective incentives for Claimants and Defendants to make and accept reasonable offers to settle.  The changes aim to make it very clear whether the damages finally awarded to a Claimant at Court are better or worse than the previous offer to settle made.  There will be financial penalties imposed on the party by the Court if it sees one party as having unreasonably prolonged the litigation by not accepting an earlier offer.

The Government’s response was announced alongside a new consultation to streamline the current Civil Justice system in England and Wales.  Read the consultation document here.  Seemingly focusing on lower value claims, the key aims identified by this new consultation are raised to address and encourage:

1.      Proportionality – disputes be resolved in the most appropriate forum to drive down costs in non-complex issues

2.      Personal responsibility – the general public to take responsibility for resolving their own disputes in non-complex issues

3.      Streamlined procedure – timely justice provided in a “user” friendly manner

4.      Transparency – clear information provided on dispute resolution options available

This consultation is open until 30 June 2011.

JUDICIARY SLAMS PROPOSED CUTS TO LEGAL AID

Report predicts ‘inevitable’ decline in quality of justice and an overloaded Court system for Clinical Negligence cases

Read the full report here

The report of the Judges’ Subcommittee states candidly that removal of Clinical Negligence from Scope “does not appear… justified” (para 37). 

It importantly notes the plight of the Claimant should these proposals come to fruition by reminding that the proposals will cause “potential injustice for a small group of highly vulnerable Claimants if the present proposal is implemented” (para 47).

The report’s conclusions, echoing those of AvMA’s consultation response, assert that the current proposals will compromise access to justice for those that need it most.  It emphasises that “victims of clinical negligence are almost always the vulnerable, from the unborn child to those who are physically or mentally ill or infirm and whose vulnerability is usually the reason for the medical intervention.” (para 38)

The most notable concern is the expected rise in the Litigant in Person triggered by the axing of Legal Aid.  With this means of funding no longer available, it is anticipated that solicitors will be unable to take on many of these clinical negligence cases, as firms will find themselves unable to fund the high disbursements associated with this complex area of law.

Paragraph 43 of the report remarks, “Given the hefty front loading of financial outlay to assemble the necessary expert evidence to support clinical negligence claims, as well as the high cost of legal expertise … to pursue litigation,it must be highly questionable whether there is any other ‘viable’ alternative to legal aid.”

With no such viable funding alternative, particularly bearing in mind the potential double-whammy consequences of the proposed Jackson CFA reforms, Claimants will be forced to represent themselves leading to a host of foreseeable problems, according to the Subcommittee. 

Paragraph 38 of the report explains the problem with this, “as a result of the many special features of clinical negligence litigation, a separate body of legal principles and practice has developed over the last fifty years or so, leading to what is now sophisticated and complex litigation, quite beyond the ability of anyone to pursue as a Litigant in Person.”

The report comments that the increase in the number of Litigants in Person will lead to, not only an ‘inevitable’ decline in quality of justice, but also, an overloading of the Court system. 

In fact, it is ostensible that the court system will slow down to such an extent that in the long-run, it could cost the government more money than the current system of Legal Aid, seemingly subverting the point of the proposals!

The report further justifies its concern about the potential cost that will be created if Legal Aid is abandoned, by highlighting the fact that, “Fewer than 1% of all solicitors are able to represent Claimants in clinical negligence litigation under the system of legal aid franchising.  Those that do are, consequently, responsible and highly specialist practitioners who are unlikely to waste public funds on hopeless claims.”(Para 40)

The report reiterates that currently there is no other viable or proposed alternative for funding claims which would currently fall in Scope.  The Subcommittee reminds that the NHS Redress Act 2006 is not yet in force and warns that in any event this Act will only serve to cater for low value claims.  It will not serve to fill the access to justice gap left by the removal of Legal Aid funding.

Read AvMA’s response to the Consultation. 

 

Please sign here if you wish to show your support for petition to the government urging them to reconsider proposed changes to both the current Legal Aid system and CFA.

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AvMA SUBMITS RESPONSE TO MoJ’S CONSULTATION ON LEGAL AID REFORM

Read the response in full on our website

Firstly, we should like to pass a big THANK YOU to all AvMA’s members and friends who provided data, comments or feedback with regard to the compilation of our response.  Your participation was invaluable. 

Notwithstanding this, we stress the independent nature of our response which is based on what we believe the effect these proposals will have on those who have unfortunately suffered a medical accident.  Our response does not promote the views of our individual members or supporters.

Our conclusions are clear.

The proposal to remove Legal Aid funding from patients who are injured in the course of medical treatment is fundamentally unfair.

It will have a disproportionate effect on some of the poorest and most vulnerable members of our society, including the elderly and children.

Access to Justice will be compromised.

Summary of findings:

The alternative funding suggested by the proposals, such as Conditional Fee Agreements (CFA) and Before the Event Insurance (BTE) will not provide a viable alternative to those, who, under the current system, are entitled to Legal Aid.

This rings especially true if Lord Justice Jackson’s CFA reforms are implemented, which were submitted presupposing the continuation and maintenance of the current Legal Aid system.

One of the major concerns to Claimants and solicitors alike, is the non-funding of disbursements.  With Legal Aid gone, it will fall upon solicitor firms to fund costs of investigation which will be unworkable for many firms meaning legitimate cases may be rejected.  The Claimant, that is an individual who has suffered harm in the course of medical treatment, will suffer.

Alternatively, Claimants themselves will be expected to fund these significant costs.  Clearly this is not an option for those who would be entitled to Legal Aid in the current system and the threat is that genuine cases will go unheard.

A straw-poll of solicitor firms showed that they would only have taken on 44% of their existing Legal Aid case load if they had to use alternative funding for the cases.

This means a staggering 56% of potential claims would fall through the net.  Using this figure against the number of LSC certificates notified to the NHSLA for the current period, means around 2,128 Claimants could have been denied access to justice.

Smaller solicitor firms are likely to be unable to run cases of lesser value or those of high risk requiring significant upfront disbursements.  This could lead to no access to legal advice in large areas of the country for Claimants, as the work is concentrated in fewer but larger firms.

The proposed limits to expert fees will also cause an inequality of arms.  Certain disciplines such as neonatology, will simply not be able to work under the fee regime suggested.  Yet, Defendants will still have access to these specialists which clearly contravenes the idea of fairness in proceedings.

It is also likely to result in a withdrawal of some experts from Claimant work altogether.

Further, the rise in individuals pursuing a claim on their own (litigants in person) is a real possibility.  Clinical Negligence claims are very complicated.  No-one managing a clinical negligence department would ask a newly qualified solicitor to run such a case without careful supervision and support.  The cases are heavily reliant on expert evidence from senior hospital consultants and nurses.  Experts are likely to find this an unworkable option and under-settling will be a real threat.  The court system itself is very complicated for the uninitiated.

From information provided by solicitor firms, on average Clinical Negligence claims take fifty-four months to conclusion.  This time is unworkable for the litigant in person.

Cases concerning the death of a patient, where under our law the damages are quite modest, will be prejudiced.  Claimants could either  not find a solicitor to take the case on or if the case can be pursued will suffer a significant deduction from the relatively low damages to cover their costs.  The result will be a significant denial of justice for these Claimants.

The availability of Legal Aid only in exceptional circumstances (one government proposal) will not make up for the deficit.  We have spoken to many solicitors who say already in cases where only exceptional funding is available it is hardly ever granted.

Legal Aid has also brought about quality control of Clinical Negligence professionals, Solicitors who wish to secure a Legal Aid contract must demonstrate that they have a quality mark with ongoing supervision ensuring high standards of work within the industry.  These checks and balances are in danger of slipping if Legal Aid goes, with Claimants potentially suffering the consequences.

AvMA asks to be included in any further consultations that will take place, including any discussions concerning the implementation of a specialist helpline.

At the time of posting we are delighted to say we have over 1,100 signatures on our petition to the government urging them to reconsider proposed changes to both the current Legal Aid system and CFA.  Please sign here if you wish to show your support: