Response from Davies and Partners Clinical Negligence Team

Viewers Of ITV Tonight’s programme “What Price Justice” (Thursday 8 September) saw moving interviews with people who had been left disabled as a result of medical errors.  14 year old Andrew Green described the difference that had been made to his life as a result of legal aid funding a successful compensation claim.  TV journalist Andrew Brown explained how his compensation has enabled him to have the high quality care that means he can walk again.

The programme looked at the controversy over the government’s proposals to reform funding of such claims.  The government is seeking to cut back access to legal aid while at the same time changing the “no win, no fee” scheme.

There is only so much that can be covered in a 24 minute programme, and viewers may well have more questions than answers following the programme.  The specialist clinical negligence team at Davies and Partners have put together some more detailed responses to some of the key issues and questions raised by the programme:

There are a huge number of claims against the NHS

8,500 claims against the NHS in the last 12 months does sound like a very large number.  It is important to put the number of claims in context.  The NHS in England is a huge organisation employing over 1.5 million people with millions of patient contacts annually.  Inevitably errors will occur. In 2010 there were 1,139,784 reported incidents where patient safety was compromised.  Of those, only a small proportion of people will consider taking legal action.  As Claimant lawyers we advise around 50% of those who contact us that they cannot take their case further, either because the case is not strong enough or because they will not get funding.

The number of people who bring clinical negligence claims against the NHS is only a tiny proportion of reported patient safety incidents.

The Legal Aid Budget is “out of control”

Minister Jonathan Djanogly quoted a legal aid budget of £2.2 billion annually.  That figure is for the whole legal aid budget and most of it relates to criminal legal aid.  Most of the civil legal aid budget is taken up on family cases.  Clinical negligence accounts for less than 1% of the annual budget.

The NHS Litigation Authority, the body which defends cases against the NHS, regards legal aid as the most efficient way of funding clinical negligence claims and is in favour of its retention.  Its chief executive Steve Walker says that legal aid is “the cheapest and simplest way to fund cases.” 

Lord Jackson, the law lord who has proposed reform of the “No win, no fee” system made his recommendations on the basis that legal aid for clinical negligence would remain.  In a speech at Cambridge University in September 2011 he described its proposed removal as “the most unfortunate” of the government’s proposed reforms.

Legal Aid will remain for exceptional cases

The Ministry of Justice says that legal aid will remain for exceptional cases.  Justice Minister Mr Djanogly does not define exceptional, except to give as an example cases involving human rights issues.  Many clinical negligence cases involve matters of life, death and disability.  Each is exceptional to those affected.

At Davies and Partners we share the concerns of the charities Action against Medical Accidents (AvMA) and Inquest.  There is already legal aid funding for exceptional cases in claims for personal injury and inquest representation.  It is very limited and difficult to obtain.

Claimants will still be able to pursue claims under “No win, no fee” schemes

Some people may still be able to pursue claims, but many will find that lawyers do not want to take on their claims because they are not straightforward.  While lawyers will not charge their fees, there are still expenses that will have to be paid as the case continues.  There is also the risk that thousands of pounds of much-needed compensation will go in legal fees.  Under the present scheme these fees are paid by the Defendant and do not come out of compensation.

More money is paid to Claimant lawyers in total than NHS lawyers.

In English law the burden of proof is upon the Claimant.  This means that we have to investigate the claim, identify the issues and prove every point in our case.  The legal costs involved in defending the case will always be lower.

Claimant lawyers are paid more hourly than NHS lawyers

Claimant lawyers are only paid for some of the work they actually do on cases, whether they succeed or not.  NHS lawyers are paid on a different basis and so simple comparisons of hourly rates on particular cases are not meaningful.

Legal costs are high in relation to compensation

There are always examples of cases where costs are higher than compensation.  These figures are meaningless in isolation.  One of the most important factors in driving up cost is where a case is defended when it should have been settled early.  The longer a case goes on, the more expensive it becomes.  Then there is need for the Claimant to prove her case, as described above.  In clinical negligence cases we have expensive medical expert reports which are the foundation of the case.

It is important to understand that there is a mechanism to control legal costs and that is scrutiny of the Claimant’s bill by a costs judge at the end of a case.

Cutting legal costs will mean more money can be put into the NHS budget

The NHS Litigation Authority has raised concerns that the present proposals are actually likely to cost the NHS more as they will have to meet the costs associated with alternative funding such as insurance premiums.  They are also concerned that removing clinical negligence from legal aid will result in non-specialist solicitors acting in such claims and increasing costs.

The costs of funding legal aid are met from the Ministry of Justice’s budget whereas costs associated with litigation against the NHS come from the NHS’ budget.  Savings to the Ministry of Justice budget will not necessarily translate into increases in budgets for patient care.

Is it just about personal financial gain?

Minister Jonathan Djanogly says that obtaining compensation is about personal financial gain.  He ignores the fact that society benefits from successful clinical negligence claims.  These benefits may be hidden, but they need to be taken into account:

1. 1) Lessons are learned from individual cases, and that learning is disseminated throughout the NHS.  This should result in savings on patient care, complaints and legal costs.

2. 2) The individual Claimant can use his compensation to pay for private care, treatment, housing and equipment rather than relying upon the NHS or social services.

3. 3) At the end of a successful case the state is repaid benefits through the Compensation Recovery Scheme.  In 2010/11 £11,355,690.97 was recovered from clinical negligence claims through this scheme.

4. 4) The Claimant may be able to contribute to society and return to paid employment.

5. 5) A disabled Claimant will be able to afford to employ carers, paying tax and NI in the process. 

6. 6) Family members who have taken on the burden of caring for the injured person will be relieved of many of their responsibilities.  This means they will have a respite from the stress and physical hardship that caring involves and will be able to return to other socially useful activity, including perhaps paid employment

7. 7) Last, but most important of all is the immeasurable difference that proper compensation can make to the lives of some of the most vulnerable people in our society