Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Action against Medical Accidents (AvMA) (LA 62)

1 About AvMA

1.1 Action against Medical Accidents (AvMA) is the independent charity for patient safety and justice. Established for nearly 30 years, AvMA provides specialist advice and support to over 3,000 people a year affected by medical accidents, and works collaboratively with the Ministry of Justice, Department of Health, NHS, lawyers, regulators and other patients groups to improve patient safety and the way injured patients are responded to. AvMA brings a unique and well informed independent patient / consumer perspective to these issues.

1.2 AvMA has particular expertise in the field of clinical negligence. AvMA established the first accreditation scheme for solicitors who specialise in clinical negligence (its clinical negligence ‘panel’ ) and continues to train, advise and support solicitors specialising in clinical negligence. Access to justice for people harmed as a result of avoidable mistakes in healthcare remains central to the charity’s mission.

2 Executive Summary

2.1 AvMA is profoundly concerned about the negative impact that the changes in the current Bill would have both for access to justice for people affected by clinical negligence and for the NHS and the State (and the taxpayer) as a whole.

2.2 We argue that clinical negligence should be kept in scope for legal aid, and point out that this view is shared not only by advocates for patients and access to justice but also the NHS Litigation Authority itself and the Clinical Disputes Forum (which represents stakeholders from all sides involved in clinical disputes).

2.3 We argue that amendments are also needed to the proposals for changes to how conditional fee agreements (no-win no-fee arrangements) will work.

2.4 We point out that patient safety is likely to be harmed if people are less able to legally challenge healthcare providers.

2.5 We also point out that the proposals as they stand fail to take account of the extra costs that will be accrued by the NHS as a result of the reforms, which are likely to exceed any modest savings for the Ministry of Justice.

3 Legal Aid and Clinical Negligence

3.1 The assumption that the reformed no-win no-fee system would provide a suitable alternative for claimants is misplaced and ignores the responses from specialists to its consultation. A survey of AvMA’s specialist clinical negligence panel solicitors suggests that at least 50% less cases will be taken on. Only the more obvious straightforward cases will be taken on, leaving some of the most vulnerable people in society including brain injured children, with no access to justice

3.2 The Ministry of justice impact assessment for the Bill takes no account of the extra costs that would be accrued by the NHS if clinical negligence were to be taken out of scope for legal aid. Responses to our Freedom of Information requests to the Department of Health and NHS Litigation Authority confirm that no such assessment even exists. (See appendices).

3.3 Unless large numbers of people are denied access to justice at all (which is not the policy intention), the result of the reforms would be additional expense for the NHS and the State overall. For example, whilst the Ministry of Justice estimates it would save just £10 million a year by taking clinical negligence out of scope for legal aid, we estimate that if all cases which are currently successful under Legal Aid were successful under the revised no-win no-fee arrangements, the cost to the NHS of investigating new claims and settling previously legally aided cases under the reformed system would amount to at least as much. This is mainly because the NHS will have to pay for expensive insurance premiums to cover the cost of medical expert reports. However the NHS will also have to spend money investigating and defending more spurious claims generated by throwing the market open to non specialist solicitors and claims farmers, without any of the controls offered by legal aid. Further, we are concerned that the recoverability of after the event policy costs is proposed to be in respect of medical reports only. In cases involving serious and persisting injury there are many disbursements in addition to medical experts. Fees for quantum experts can amount to as much as £30,000 and miscellaneous disbursements for travel, couriers, specialist medical examinations such as MRIs and subsistence can amount to as much as £15,000

3.4 Currently only firms represented on the specialist clinical negligence panels can run cases under legal aid. Establishment of specialist clinical negligence panels is seen by most experts as having been invaluable in improving efficiency and the ability of solicitors to assess potential cases, including screening out ones without merit. The reformed system would enable any non-specialist solicitor to run a clinical negligence case with none of the controls exercised currently by the Legal Services Commission, encourage claims farmers and generate more unmeritorious claims.

3.5 We note that even the NHS Litigation Authority wishes to have clinical negligence retained in scope for legal aid. Their response to the consultation states: "Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria". Sir Rupert Jackson himself said in his proposals for reform of no-win no-fee agreements: "I stress the vital necessity of making no further cutbacks in Legal Aid availability or eligibility …… the maintenance of Legal Aid at no less than present levels makes sound sense and is in the public interest". The Clinical Disputes Forum, a charity which brings together all the different stakeholders in clinical disputes, also argues for the retention of legal aid specifically for clinical negligence.

3.6 We do not agree that the mere possibility of ‘exceptional funding’ being awarded if the Ministry of Justice is in danger of being in breach of Human Rights goes anywhere near enough towards preserving access to justice. Experience of exceptional funding to date has shown that it is in practice very rarely awarded. Also, there would be an administrative burden attached to assessing applications for exceptional funding, hearing appeals and no doubt satellite litigation over alleged unfair denial of funding. The fact that the Ministry of Justice is already conceding that it would have to allow for 35% of the existing rate of cases to be funded through the exceptional funding route, lest it be in breach of Human Rights, makes it all the more sensible to retain clinical negligence in scope altogether.

3.7 We strongly advocate the retention of clinical negligence within scope for legal aid.

4 The ‘Jackson’ reforms – Conditional Fee or ‘no-win no-fee’ arrangements

4.1 The proposed reform of no-win no-fee agreements means that if a solicitor is to claim a success fee in successful cases, they have to claim it from the claimant’s general damages and past losses. The proposal is to increase the level of general damages by 10% to compensate claimants for this (although how this can be guaranteed is not explained). However, solicitors will be able to claim up to 25% (and many argue this will be necessary to make this work viable) thereby depriving deserving claimants 15% of the general damages that the court has deemed they are entitled to. We believe it is wrong in principle to force solicitors to eat into the damages that claimants need and deserve in order to pay for a new system that the Government is imposing. . Not only does this go against the well established legal principle that the claimant is entitled to damages to compensate him/her for the injury but serves to increase the likelihood of a conflict of interest arising between solicitor and client. We strongly support the principle is that the ‘polluter pays’. Further, no account has been taken of the situation where past losses are held in trust for another, such as where there is a claim for past care provided by a relative, the so called ‘gratuitous care’ claim.

4.2 If the proposal to pay for solicitors’ success fees by allowing deductions from claimants’ damages goes ahead, the increase in general damages needs to be considerably greater to cover the expected rate of success fee.. The Ministry of Justice has so far failed to explain how it can guarantee an increase in general damages in any case. The Bill should not allow deductions from claimants damages if the corresponding increase in damages is not guaranteed on the face of the Bill.

4.3 The Ministry of Justice accepts that in order to make the new arrangements for no-win no-fee work and to make insurance to cover claimants from costs payable to defendants in the event that they lose unnecessary, people need not to be liable for the defendants’ costs. It proposes what it calls ‘qualified one-way costs shifting’. It is said that all but the very rich will benefit from this arrangement. However, either this arrangement should be available to all, or there needs to be a specific rule about what constitutes a degree of wealth such that a claimant would not benefit from ‘one way costs shifting’. It is an essential component if access to justice under no-win no-fee is to be preserved and should be on the face of the Bill. We believe that one-way cost shifting should be available to all, or at least there should be no uncertainty as to what constitutes ‘conspicuously wealthy’

4.4 Whilst we recognize the need for some reform of the current system as it applies to claimants, the opportunity should also be taken for defendants to be incentivised to investigate and settle claims promptly where appropriate. This could result in massive savings in legal costs. We would advocate a system of staged success fees, where the defendant pays no success fee if they admit liability promptly, but pays increasingly more the longer an eventually successful case is defended.

5 Impact on Patient Safety and other unintended consequences

5.1 Investigation of legal claims provides a powerful incentive for the NHS to improve safety and often results in vitally important lessons which would not otherwise come to light. This includes the "unsuccessful" claims investigated under legal aid but dropped often for technical legal reasons, but which still uncover failings in care. Putting aside the human cost, just one additional successful clinical negligence case involving serious and persisting injury, as a result of weaker patient safety, could on its own wipe-out the estimated annual ‘savings’ from scrapping legal aid.

5.2 We share the Judiciary’s concerns about the impact on the courts and the system as a whole that an increase in litigants in person, which we see as inevitable if the Bill goes ahead un-amended, will have.

5.3 Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.

6. Alternatives to litigation

6.1 We are disappointed that Lord Jackson’s recommendation to reconsider implementing the NHS Redress Act was ignored. We are in favour of an administrative system to award compensation in less complex cases, if suitably designed and sufficiently independent, as an alternative to litigation. We are not however convinced that a ‘road traffic accident’ type portal along the lines currently envisaged would be an appropriate way of dealing with such claims. We are concerned that discussions of this scheme to date have completely excluded representatives of patients/consumers.

APPENDICES

1. Freedom of Information Act – response from Department of Health

2. Freedom of Information Act request – response from NHS Litigation Authority

From: Ruth Symons [Ruth.Symons@nhsla.com] on behalf of FOI [foi@nhsla.com]
Sent: 27 July 2011 17:15
To: Peter Walsh
Subject: RE: Freedom of Information Act request

Follow Up Flag: Follow up
Flag Status: Red

Dear Peter

The response to your question (relating to England) is that we have made no such assessment.

Regards,

Ruth

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Ruth Symons

Risk Manager

NHS Litigation Authority

September 2011

Prepared 7th September 2011