The government is proposing in its Legal Aid, Sentencing and Punishment of Offenders Bill to withdraw legal aid funding for all clinical negligence cases. This is despite specialist firms of solicitors, like mine, now carrying out legally aided clinical negligence cases, which has in turn increased the success rate of those cases and therefore decreased the number of cases in which the Legal Services Commission have to pay out on cases.
The Government wish to do this in the belief that such cases will be taken up by other funding methods, for example ‘no win, no fee’ (otherwise known as conditional fee agreements). Unfortunately, for some of the cases brought on behalf of the most vulnerable clients, that is those children rendered severely disabled as a result of negligence in their medical treatment, the costs of bringing those claims will prevent those clients from getting access to justice. This is because ‘no win, no fee’ only applies to the time/costs of the lawyer. The expenses of the case such as court fees and expert fees still have to be paid as the case goes on, and in such complex cases those sums are too high for firms of solicitors to be able to support those cases:
No legal aid for cases involving all severely disabled children = no cases = no access to justice.
There is also the constitutional issue, in that the Government funds the NHS, including its claims if negligent. Those claims can then also involve Government funding for the claim via legal aid. If the Government cuts off support for such cases, then in effect it puts the Government-funded NHS above the law, which is an abuse of power. Furthermore, if the public do not have practical access to justice, that fundamentally undermines our society and even democracy itself.
The Government funds the NHS and pays its claims: no access to justice through legal aid cuts = a conflict of interest/abuse of power.
The major concern has to be why the Government is cutting legal aid for clinical cases at all, because independent research shows that whilst this would save £17 million from the legal aid budget it would result in extra costs for the Department of Health, and so in fact produce no ‘cut’ in Government spending at all and instead an increase.
The most glaring omission from the current debate however, is that no one is currently looking at how to reduce the incidence of negligence in the £100 billion per year taxpayer-funded NHS. Without negligence in the system, there could be no claims. Furthermore, without claims, the NHS loses a valuable learning experience to improve our healthcare system for future patients.
As a result of our ‘Its Not About Us (Lawyers) Its About Them (Clients)’ campaign and others, ministers have now agreed to continue to fund cases of severely brain-damaged children, where the negligent act occurred before eight weeks of life. Unfortunately, that is a completely arbitrary concession. It does not take into account severely disabled children who have not suffered brain damage, and furthermore there is no logical reason for the cut off point of the negligence having to have occurred by eight weeks of life. There will remain a number of vulnerable, severely disabled children like Annie Burchell who will in the future still be denied access to justice without legal aid funding for their claim, even with the concession currently made by the Government.
We have had some success to date, with our points being raised directly in the House of Lords and the current limited concession won from the Government. That is why the campaign to retain legal aid funding and therefore access to justice for all vulnerable severely disabled children, no matter how or when their disability occurs, goes on.
Paul is a partner at the law firm Withy King LLP and has been a specialist in clinical negligence law for 14 years. He is a member of the Law Society’s clinical negligence panel and was awarded Bristol Law Society’s outstanding achievement award 2011.