Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Paul Rumley, Partner, WithyKing (LA 31)

Legal Aid Sentencing and Punishing Offenders Bill

I am writing to you as a member of the above Bill’s scrutiny committee, and in my capacity as a nationally recognised specialist in the field of clinical negligence law who acts on behalf of severely disabled children.

The only wrong these children have committed, is to be born extremely severely disabled as a result of negligence in the National Health Service. They have been injured through no fault of their own, and in fact the fault of someone else, and what they require is the necessary compensation to help them make the most of their lives within the limitations of their disabilities.

The legal aid cuts, will deny access to justice to these clients. This is because the current proposals do not understand the business of the law – in no win no fee funding situations, whilst the expenses of the claims such as experts’ fees which can be considerable may be paid by the Defendant at the end of the case, or by an insurance policy if the claim is unsuccessful, someone has to pay those fees as the case progresses. These can amount to £50,000. Law firms cannot afford to fund those disbursements under a no win no fee arrangement, and therefore without legal aid, these clients will not be able to bring claims in the future and therefore will be completely denied access to justice.

Justice does not only need to be done it needs to be seen to be done. This principle applies to the recent indications from the Ministry of Justice that they may try to get around this issue, by getting the NHS Litigation Authority (NHSLA) to commission and presumably pay for joint reports in these cases. There are 2 fundamental problems with that:

1. It is firmly established in case law, in the Court of Appeal, since 2000 that in clinical negligence cases in order for justice to be seen to be done, there has to be an independent investigation into the patient’s medical treatment, which means there is no room for joint reports in looking at whether or not there has been negligence in the medical treatment;

2. Joint reports will increase legal costs for the State. This is either because patients will not accept reports commissioned by the Defendant, i.e. the NHSLA, which might tell them they do not have a claim and will seek their own reports which if they result in a successful claim will mean the NHSLA has to pay those extra costs, or alternatively this is going to be involve a lot of extra costs for the NHSLA in paying for these reports in any event. NB as per calculations carried out by the independent medical charity, Action against Medical Accidents (AvMa) the current proposals to save £17 million in legal aid on clinical negligence, will in fact not save a penny but will increase the legal costs of the NHS to £18.8 million, or in other words will actually cost £1.8 million and joint reports in these cases will only increase that bill further.

Clinical negligence claims on behalf of severely disabled children remaining in scope for legal funding has the potential to reduce the Government’s costs. As above, if taking all clinical negligence cases out of legal aid funding and making them run under no win no fee funding arrangements will overall increase the bill for the Government by £1.8 million, by putting the most expensive cases to run, i.e. those on behalf of severely disabled children injured at birth, back into the scope of legal aid that has to reduce some of that extra costs burden.

To assist the members of the committee, we attach a draft proposed amendment to Schedule 1, Part 1 of the Bill in the hope that it can form the basis for discussions about retaining access to justice for severely disabled children.

Thank you for taking the time to read this correspondence, and for thinking about helping to continue to protect some of the most vulnerable in our society.

Clinical Negligence

39 (1) Civil legal services provided in relation to –

A claim on behalf of a child against any Hospital, NHS Trust or individual clinician for alleged negligence in the treatment of the child and/or his or her mother causing serious and ongoing disability to the child;

Definitions

(1) In this paragraph "child" means any person under the age of 18;

(2) In this paragraph "Hospital" means any medical premises providing medical treatment or services to a pregnant mother and her baby, including NHS and private hospitals and maternity-led units;

(3) In this paragraph "NHS Trust"means any Trust or similar body forming part of the NHS including Foundation Trusts, Hospital Trusts, Primary Care Trusts, Local Health Authorities and Strategic Health Authorities;

(4) In this paragraph "individual clinician" means any doctor, nurse, midwife or other similar medical professional who is or who holds themselves out as being appropriately qualified and/or regulated to provide medical treatment and services to patients whether for profit or as part of their employment by a Hospital or NHS Trust;

(5) In this paragraph "alleged negligence" is a concept as per the common law including case law definition of negligence as pertaining at the time of the alleged negligence or proposed claim;

(6) In this paragraph "serious and ongoing disability" means brain damage including cerebral palsy, and any other physical and/or mental disability including erb’s palsy, epilepsy and any other disability which as per the child’s medical records has a significant and adverse impact upon their everyday life including upon their mental capacity. This list is not intended to be exhaustive as to what would constitute a serious and ongoing disability.

Connected matters

40 (1) Prescribed civil legal services provided, in prescribed circumstances, in

connection with the provision of services described in a preceding

paragraph of this Part of this Schedule.

Exclusions

(2) Sub-paragraph (1) is subject to-

(a) the exclusions in Part 2 of this Schedule, with the exception of

prescribed paragraphs of that Part, and

(b) the exclusion in Part 3 of this Schedule, subject to any additional

exceptions from that exclusion that are prescribed for the purposes

of this paragraph.

PART 2

July 2011

Prepared 18th July 2011