My son Andy was part one of a group of 100 children who received a substantial amount of legal aid – £3.25million in total – to sue the pharmaceutical company Sanofi Aventis over serious birth defects known as Fetal Valproate Syndrome caused by mothers taking an anti-epilepsy drug known as EPILIM during pregnancy. It is Andy’s experience and the financial implications to the state that I wish to discuss.
EPILIM contains Sodium Valproate which is used to control epileptic seizures and mental health conditions. It is widely accepted by clinicians as an excellent drug for the control it gives patients. The side effects are shocking and are now listed in the patient information leaflets.
In one study (Cummings et al) released this year it showed that almost four out of 10 (39.6%) of children born to mothers taking EPILIM had ‘evidence of mild or significant developmental delay’. Andy is 12, autistic with a mental age of 3 and a severe speech impediment. You can read about Andy here and hear my talk about him here. Andy is disabled for life. He will never live independently and we reckon he will cost the state at least £5million.
Legal aid was withdrawn because what is known as the FACs litigation (Fetal Anti-Convulsant Syndrome) was seen as having a low probability of success in court. The reason for that is (I’d argue) that the Consumer Protection Act and the EU Product Liability Directive is inadequate. The legal concepts ‘defect’ and ‘causation’ are not defined clearly enough.
‘Big Pharma’ invests in the state and our banks. They have influence in the NHS, think tanks, national charities, research laboratories and universities so it is not necessarily in the state’s best interest to upset them. The media has been reluctant to report for fear of legal action against them by Sanofi Aventis.
MPs tabled an Early Day Motion (EDM 1035) to reinstate funding but this was never debated and the justice secretary Ken Clark said he has no power over the decisions of the Legal Services Commission which runs the legal aid scheme in England and Wales as they are independent. Why hasn’t the LSC been held to account for the millions of pounds squandered on pharmaceutical claims that haven’t been granted funding to enter court? If the EPILIM cases are good enough to be granted £3 million, surely they should go to court? It seems bizarre to spend so much much money and yet not have the issues thrashed out in a court of law?
We applied for a judicial review of the decision to withdraw legal aid but funding was denied by the Legal Services Commission. We were unable to challenge the decision made by the LSC and we as parents were unable to raise the funds needed to pay for the review ourselves.
The absence of legal aid means a case like ours can’t achieve access to justice. Our children can’t have their day in the courts. EU and UK law is not strong enough for a ‘no win, no fee’ lawyer to take a case on because they can’t get the insurance to cover other sides’ costs if they lose. In the US lawyers are acting for claimants with birth defects who were exposed to DEPAKOTE which contains Sodium Valproate. Claimants, I’m sure get, will win compensation in the same way that US VIOXX Claimants were compensated when English claimants were not.
Loss of faith
I have found it intimidating challenging the LSC, government and the fourth largest drug company in the world. I have always tended to trust those in government to look after the needs of the vulnerable. To take them on hasn’t been a comfortable experience. These children have been damaged. I have become sceptical of all government decisions and have lost trust in those elected to represent us. This makes me sad.
There is no happy ending. I worry that Andy will be abused and neglected when I die with no one to look after him and disability services being cut drastically. In America the Food and Drug Administration has issued warnings. No such warning has been given in the UK. Why? I think British Banks and the UK economy are too dependent on Big Pharma investment for the government to upset them. How many of us have £10 million if a medical or surgical procedure causes irreversible damage and you lose your job, your house and there is no free legal advice to help you with debt, litigation, provision of services, housing and marriage breakdown. How will you manage and what will it cost the state?