Don't be fooled by the promise of exceptional funding

In response to the countless meetings and volumes of correspondence Avma and our members have had with our MPs, ministers, and civil servants at the MOJ over the removal of clinical negligence from the scope of legal aid we have all had a similar response...

'Solicitors will offer clients CFAs and if not £6m will be available via exceptional funding.'

But by definition, experience, and by linking together information contained hidden deep within three very long documents we say this cannot be the answer

Firstly. How can anything that is exceptional provide for the funding of a whole category


Secondly exceptional funding has been around for a long time in theory, for exceptional personal injury claims, and inquests. The experience of our members is almost invariable, they apply but their clients do not get it.

Thirdly and perhaps most importantly is if you join up the dots and add up the figures the outcome for claimants is not good. They could (and in the case of brain damaged children would) end up worse of than with any other sort of funding because the government would take 25% of their damages to pay back to a supplementary legal aid scheme.

As we say you have to look hard and make connections. But in the green paper it is stated £6m is put aside for exceptional funding. In the consultation published in Nov 2010 a table shows £6m could be available from claimants damages if a SLAS were operated and in its response to the consultation pub June 21 2011 at para 33 page 250 the government sets out the proposal that any exceptional funding scheme for clin neg would be funded by a SLAS based on a 25% levy on all damages except future care and loss

Simples - keep legal aid in scope as it presently is or the most seriously injured will pay

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.

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”.