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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: