Written evidence from AvMA (Action
against Medical Accidents) (AJ 37)
1 Introduction
1.1 Action against Medical Accidents (AvMA) is
the charity for patient safety and justice. AvMA provides specialist
advice and support to over 3,000 patients and their families affected
by medical accidents each year. Over the years AvMA has also helped
bring about major changes to the way that the legal system deals
with clinical negligence cases and in moving patient safety higher
up the agenda. AvMA accredits solictors for its own specialist
clinical negligence panel which is a quality mark recognised by
the LSC and others, and works with over 1,000 medical experts
on its database.
1.2 The contribution that AvMA makes in its evidence
to the Justice Committee is confined to those areas within our
knowledge. AvMA has specific expertise in clinical negligence
and healthcare law; we have considerable experience in providing
assistance to clients who have suffered medical accidents either
to help in making a complaint under the NHS complaints scheme
or in finding legal representation from one of our panel members
to pursue a civil claim.
1.3 We believe that the combined effect of introducing
the current proposals for reforming civil litigation funding and
costs and taking clinical negligence out of scope for legal aid
would have a profoundly detrimental effect on access to justice.
For example, we believe the changes would inevitably mean that:
Many people, including some of the most vulnerable
in society, would find it impossible to have their claim investigated
or take forward a claim.
Those who are able to claim will lose out by having
legal costs deducted from their damages, which are based on actual
need.
The progress that has been made in improving the
quality of advice and representation provided by clinical negligence
claimant solicitors through the specialist panels developed by
AvMA and the Law Society will be lost if this quality control
exercised by the LSC is no longer required and non-specialists
will be encouraged to "have a go" through the CFA route.
1.4 AvMA further believes that the current proposals
represent a lack of imagination and of joined up working between
the Ministry of Justice and the Department of Health. Millions
of pounds could have been saved for the Department of Health by
increasing access to legal aid for clinical negligence rather
than encouraging increasing numbers of claimants to use the much
more expensive CFA route. Another unintended consequence of the
proposals is that a major driver for improving patient safety
would be diluted by making it impossible for many genuine claims
to go forward at all.
1.5 However, AvMA does accept the status quo
is not an option. Within this paper we flag up some ideas about
how the system as it applies to clinical negligence could be made
more efficient and actually save more money for the State than
the current proposals, but without harming access to justice.
We would welcome the opportunity to expand on these ideas in providing
further evidence to the committee.
2. What impact will the proposed changes have
on the number and quality of practitioners, in all areas of law,
who offer services funded by legal aid?
2.1 AvMA can only respond in relation to the
impact on clinical negligence litigation, that is claims brought
by patients against healthcare providers for damages for personal
injury caused in the course of healthcare treatment.
2.2 A serious unintended consequence of the proposals
would be the dilution of the benefits of clinical negligence panel
membership (a quality mark for solicitors). Panel membership is
awarded to individual solicitors by either the Law Society or
AvMA (two separate panels) after the applicant has demonstrated
expertise and experience in clinical negligence work by way of
a written application (including details of a number of the applicant's
cases) and interview.
2.3 Membership of either AvMA's clinical negligence
referral panel or the Law Society's clinical negligence panel
has been a requirement for holding a legal aid franchise from
the LSC. This requirement has led to a raising of standards in
clinical negligence work and made a considerable contribution
to the development of clinical negligence as a separate specialty
(and not just a sub-speciality of personal injury). The effect
of the LSC franchise requirements has been that almost every firm
that undertakes clinical negligence work has at least one panel
member supervising work; such membership generally being a requirement
when firms recruit senior solicitors to their team. Without legal
aid in this area of law including the compulsory requirement for
panel membership it is inevitable that this externally assessed
form of quality control will be lost or lose its impact. A return
to non-specialist solicitors "having a go" at clinical
negligence will mean more unmeritorious claims being made and
also less success for meritorious claims.
2.4 Without legal aid some firms will find themselves
with cash flow difficulties if all their clinical negligence cases
have to be run on a CFA and they have to fund disbursements. While
this already applies to current cases run on a CFA and those covered
by before the event insurance the loss of legal aid with its disbursement
funding and payments on account of costs will greatly increase
this burden on small firms. The effect of this loss of funding
will cause some firms to cease undertaking clinical negligence
litigation work all together.
2.5 We have particular concerns over catastrophic
injury claims. These cases rely very heavily on expert evidence
(for liability, causation and quantum) and take a considerable
length of time to reach a conclusion. Thus a solicitor could be
expected to fund one or two hundred thousand pounds worth of disbursements
and carry as much again in unpaid work in progress for four to
six years. The claimants in these cases are the most seriously
injured claimants, including children and the least likely to
have any personal resources to fund disbursements themselves.
Before the event insurance is not even a partial solution to this
problem as the insurers do not provide disbursement funding or
pay costs on account, their benefit is that in the event the case
is lost the solicitor is reimbursed but it does not benefit cash
flow.
2.6 The largest firms in the country may try
to channel claims to their offices. This will provide access to
justice for some but not all (many will lose out if the same range
of cases are not taken on or if firms cherry pick) but at a price.
These firms are not as broadly spread out in geographical terms,
clients will have to travel long distances or rely on email and
telephone to contact their solicitors (or the solicitors will
travel, in the case of significantly injured claimants, adding
considerably to costs).
2.7 Batch processing of claims, already seen
in road traffic accident cases and other personal injury claims
will lead to the reduction in the quality of advice and a lack
of contact between solicitor and client. There is also increased
reliance on "paralegals" with large groups of unqualified
staff supervised by a single solicitor. There is evidence that
the pressure on the paralegals to complete cases and bill means
that there is a tendency for the client to be encouraged to accept
the first offer to get the case settled and billed. This inevitably
leads to under settlement of cases in terms of value.
2.8 Further, in the field of clinical negligence
it is vital given the issues involved that a client meets his
or her solicitor at key points in the investigation and litigation
of a claim, to give instructions and provide statements. However,
if firms become larger and more process driven the personal contact
with clients may be lost. This change has already been seen in
personal injury work since the changes of the late 1990s.
2.9 The effects of these changes may also lead
to a reduction in consumer choice as small firms merge with larger
(or the fee earners transfer) and the work is transferred to the
larger urban centres. This effect may also be exacerbated by the
effect of insurers (chiefly Before the Event insurers) insistence
on their insured being represented by solicitors on their panel.
Before the Event insurers may sell claims to solicitors and/or
use firms which will not claim against the insurer if the claim
is unsuccessful (on the understanding more referrals will be forthcoming).
This arrangement can work well especially for low value claims,
however, it is a commercial arrangement between the insurance
company and the firm of solicitors that does not always guarantee
the best quality advice and representation to the injured party.
2.10 Membership of an insurance company solicitor
panel is all about economics and economies of scale, not expertise.
While some of the firms on an insurer's panel may have solicitors
who are members of the AvMA or Law Society clinical negligence
panel they are more likely to be personal injury specialists only
(i.e. where injuries are caused in the workplace or road traffic
accidents). Expertise in personal injury does not necessarily
qualify a solicitor to act in clinical negligence cases where
the issues of causation are much more complex and often require
a detailed knowledge of medical procedures, disease and the structure
and policy of healthcare provision. This situation is only likely
to be made worse by the effects of the loss of legal aid and the
changes that are likely to ensue.
3. The Government predicts that there will
be 500,000 fewer cases in the civil courts as a result of its
proposed reforms. Which cases will these be and how will the issues
they involve be resolved?
3.1 It is important to note that the effect of
the current proposals would indeed mean that savings would be
made by stopping many clinical negligence claims, many of them
meritorious, from being made. We believe there are better ways
of making the system more efficient and realising savings without
denying access to justice.
3.2 It might be easier to state which cases will
not be so affected. At present claims with a value roughly between
£50,000 and £1 million are very often funded by conditional
fee agreements While the changes will affect these cases too,
it is likely that solicitors will continue to take on most of
these cases and act for their clients under the new proposed CFA
costs regime (although claimants will still suffer a reduction
in their damages by the deduction of success fees). It is our
view that clients with cases of this size will probably continue
to find legal representation to pursue their claims.
3.3 Our main concern is for lower value claims
(ie up to £50,000) and catastrophic injury claims (ie where
damages are estimated to be in excess of £1 million). The
issues differ between the two ends of the damages spectrum. For
lower value claims, solicitors may feel that without recovery
of the success fee a case is not financially viable on a costs
benefit basis. For catastrophic injury claims, a solicitor may
not be able to carry the disbursements or take the risk of an
unsuccessful claim. We are also concerned about funding for disbursements
in all cases formerly legally aided. Most solicitors' firms do
not fund all disbursements, expecting instead their clients to
pay at least the cost of initial expert opinion. Such costs are
likely to be beyond the means of most claimants formerly eligible
for legal aid.
3.4 At present there is no formal mechanism for
settling claims without litigation, however, it is our opinion
that serious consideration should be given to implementing a scheme
that enables settlement of lower value claims. Such a scheme would
address the issue of access to justice for the claimants in this
category, many of which have claims arising out of a fatality
and ensure the claims are expedited in a reasonable time at a
reasonable cost. The NHS Redress Act was an attempt to provide
for such a scheme. Whilst we do not suggest that the NHS Redress
Act comes into force in its present form, we do believe that with
some adaptations (for example more independence and the availability
of independent advice) an NHS Redress Scheme could provide a suitable,
low cost way of resolving many lower value claims. We would welcome
involvement in any discussions about alternatives to litigation
for clinical negligence.
3.5 The issues for claimants with injuries of
the utmost severity whose cases attract damages in excess of £1m
are in relation to the cost of disbursements and the length of
time a case takes to settlement. The burden of disbursements in
these cases and the number of years (commonly between 4 and 6)
before either barristers of solicitors receive any fees, if at
all, will mean that for many lawyers the cash flow difficulties
will prevent them taking on these cases at all.
3.6 The risks of taking such a case on are so
high for solicitors and barristers that there will be a tendency
for only a small number of firms with sufficient resources to
take on these cases and only when the likelihood of a case succeeding
is very high. Proposals have been made by the government in the
legal aid consultation to retain exceptional funding for cases
where the ECHR is engaged. This may cover some cases involving
brain damaged children and some fatal cases but would not be enough
to ensure access to justice for all of the members of this group.
Some mechanism must be adopted whereby all these cases (an adult
brain damaged in the course of surgery is as needful of litigation
funding and compensation for his injuries as is a child with cerebral
palsy) receive funding from some form of self funding legal aid
scheme, or at the very least, legal aid disbursement funding
3.7 Finally we envisage that a significant number
of potential claimants who are unable to find a solicitor to take
on their cases will become litigants in person. At present few
claimants act in their own cases in clinical negligence claims
but it is inevitable that these numbers will increase when individuals
fail to find a solicitor to represent them. We cannot predict
whether these claimants will be successful or not in bringing
a claim but we believe it is inevitable that they will encounter
difficulties. Experts generally do not accept instructions from
litigants in person, the courts will have to provide more advice
and support on the litigation process. Litigants in person may
not fully understand what is expected of them or what they can
expect from disclosure and all these issues can cause delays and
an increase in interlocutory applications. The increase in litigants
in person and the resultant strain on the courts is another unintended
consequence which we do not believe has been fully considered.
4. What action could the Government be taking
on legal aid that is not included in the proposals (for example,
on Very High Cost Cases)?
4.1 On very high cost cases, in order to maintain
access to justice and address the issues outlined above the government
should consider keeping all cases with an estimated value of £1m
or above within scope, not just children's cases. Further all
fatal cases should also be included, not withstanding their low
value on the grounds that they are of utmost importance to the
clients and the issues are often as complicated as cases where
the patient survives.
4.2 We do not believe exceptional funding is
sufficient to ensure access to justice for these patients. Exceptional
funding will always be discretionary and subject to available
funding (ie no funding if the year's budget is exhausted) and
is no substitute for keeping this category within scope.
4.3 With regard to the lower value claims, these
are often very serious, for example involving the death of a child
or older person. These are unlikely to be able to be taken on
under a CFA and we suggest that it must be in the public interest
to keep such cases within scope for legal aid.
4.4 Within the legal aid arrangements, consideration
could be given to the potential role of non profit organisations
to provide telephone helpline advice or even run a self funding
legal aid scheme. AvMA would be happy to discuss how such a scheme
could be implemented
5. Do the proposals to implement the Jackson
report recommendations on civil court funding and costs adequately
reflect the contents of that report?
5.1 In one significant area, no. The recommendations
were made on the understanding legal aid would remain for clinical
negligence. It is not entirely clear exactly what figures Sir
Rupert based his views on (we understand he had difficulty in
obtaining costs figures from a large enough group of solicitors
to draw a conclusion) but in that he did, he made his recommendations
in relation to funding and access to justice on the grounds that
clinical negligence remained in scope of legal aid. It is the
combined effect of both sets of proposals which makes them unjust
6. What are the implications of the Government's
proposals?
6.1 As the number of cases that solicitors are
willing to take on declines (by the government's own estimate)
there will be particular groups who experience reduced access
to justice. Those who previously would have been in receipt of
legal aid are likely to be the biggest group affected. Thus children,
the poor, elderly and chronically sick will be more affected than
those in work and who are more financially affluent.
6.2 Solicitors will not be prepared to take on
the same range of cases. The quality of advice and representation
provided will be lower.
6.3 Claimants with clinical negligence claims
will struggle to find suitably qualified solicitors in their area
to act for them. Either they will have to travel long distances
(or give instructions by email or telephone) to see specialist
panel solicitors or they will instruct local solicitors whose
expertise is in personal injury only. This will be increasingly
the case in rural communities away from the main metropolitan
areas.
6.4 With fewer solicitors firms undertaking this
specialised work there will be less consumer choice for the clients.
6.5 Of those who do succeed in their claims solicitors
will be able to deduct up to 25% of their general damages and
past losses by way of a success fee. These damages are not punitive
but compensatory, thus claimants in clinical negligence claims
face the possibility of being under compensated for their injuries.
6.6 Deducting solicitors' costs from their client's
damages causes a conflict of interest between the solicitor and
their clients. A solicitor may encourage a claimant to settle
too early or continue to pursue a claim when it should have settled.
Solicitors will have an interest in whether a claimant makes,
accepts or rejects a P36 offer.
7. Our alternative suggestions
7.1 We accept that savings need to be found and
believe that adoption of some or all of the following suggestions
could deliver the same or even more savings in the field of clinical
negligence than the proposals themselves. We suggest:
Reduction of success fees in CFAs but on a tiered
increasing basis according to when liability is admitted and the
claim settled. This would provide a much needed incentive for
the defence to speed up the assessment of and settling of meritorious
claims and reduce costs.
Consideration of a genuine one-way cost shifting
arrangement.
Making legal aid more efficient, for example by introducing
a small levy on costs or damages to help fund the work (fully
or partially).
Retain legal aid, at the very least for cases involving
severe disability or death. Consider even widening the scope of
legal aid to include all clinical negligence cases, and possibly
even personal injury cases. The use of a small statutory charge
could make legal aid self funding.
Alternatively, widen access to legal aid to any clinical
negligence claim, but for the investigation and initial disbursements
stage only.
Make panel accreditation a requirement for running
a clinical negligence either under legal aid or on a CFA.
Introduce an alternative to litigation for smaller
value claims (an amended version of the NHS Redress Scheme concept).
January 2011
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