Written evidence from Society of Clinical Injury Lawyers (SCIL)

The Society of Clinical Injury Lawyers, SCIL, represents specialist Law Society and AVMA* Panel Member Claimant Clinical Negligence Solicitors in England and Wales.

There are two issues which are paramount to this Review:

The SCIL Response, in summary, is that the removal of Legal Aid for the great majority of clinical negligence claims was short sighted, saved only a modest amount of costs initially but has then caused further and greater problems down the line. It has resulted in increased costs for the NHS and worse outcomes for people pursuing claims. Any further attempts at overhauling the system such as imposing an ill-conceived Fixed Recoverable Costs Scheme must be treated with extreme caution as they risk worsening an already precarious situation.

Introduction

In 2013 LASPO removed Legal Aid for all clinical negligence cases save for infants who have suffered a neurological (brain) injury from during pregnancy up to 8 weeks old.

Prior to that Legal Aid was available for all types of clinical negligence – subject to a means test.

Before LASPO, Legal Aid for clinical negligence acted as a quality benchmark for specialist solicitors. Only specialist panel members were allowed to carry out Legal Aid clinical negligence work.  This quality benchmark helped generate confidence in members of the public, and assisted in filtering out unmeritorious claims.

Clinical negligence is a very specialist area. Clinical negligence claimant panel member solicitors in England and Wales are a body of highly experienced dedicated professionals.

As the work was being performed by specialists, the success rate of cases taken on was generally good with the Legal Services Commission (as it then was) recouping a significant percentage of Legal Aid outlay in successful cases.

Impact of LASPO

Following the introduction of LASPO, the President of the UK Supreme Court, Lord Neuberger, commented, “My worry is the removal of legal aid for people to get advice about law and get representation in court will start to undermine the rule of law because people will feel like the government isn’t giving them access to justice in all sorts of cases.”

 

Lord Bach, the former Labour justice secretary, also commented: “Has there ever been an Act that so picks on the poor and attacks access to justice?”

 

However even with the withdrawal of legal aid for most medical negligence cases there was still an opportunity to bring a claim under a conditional fee agreement, otherwise known as a “no win, no fee” agreement.  LASPO significantly altered the way in which CFAs work.

 

Historically, lawyers who accepted instructions under a CFA billed the defendant for their time if they won the case.  In turn they wrote off the costs off if they were unsuccessful.   It was recognised that not all cases would be successful under a CFA.  As a result, lawyers were allowed to charge the Defendant a “success fee” (basically, an uplift in their hourly rate) if they won.  This reflected the risk they took in not getting paid at all.   However, under LASPO, if you win your case, although your legal costs are still recoverable from the Defendant, the success fee element of the case is not recoverable and can be deducted from the Claimant’s damages.

 

Post LASPO/Consequences

 

Since LASPO the NHS and other providers face increased liabilities that need to be paid on successful cases that would have been unnecessary had they been run with Legal Aid eg insurance premiums.

Since LASPO and the removal of Legal Aid for all but a very small number of cases, there has been an entirely foreseeable and significant rise in the number of non-specialist firms moving in to clinical negligence work. This has led in turn to a rise in unmeritorious cases being pursued and cases being pursued badly with a knock on effects in terms of costs, delay and lack of proper access to justice.

Clinical Negligence cases are expensive to run with a relatively high disbursement spend due to the need for expert evidence. With Legal Aid, solicitors could claim the costs of disbursements from the Legal Services Commission as cases progressed. Now that the great majority of clinical negligence work is done on a conditional fee basis, firms have had to carry the burden of those disbursements or try and find private funding solutions, all of which potentially adds to the overall costs of claims and whether or not firms are willing to take cases on which in turn affects access to justice and patient safety learning.  Claims are as much a part of the potential safety learning for the NHS and other medical providers, as the complaints system.

There is also the obvious fact that, under a conditional fee agreement, the solicitor gets paid nothing if a case fails.

Specialist panel member claimant solicitors have, nevertheless, worked hard to adapt to the post LASPO world. We have ensured that our standards of excellence remain. But it has not been easy. There is little in the way of any commercial leeway left in the system since LASPO.

It is vitally important to both patient safety and access to justice that there remains a body of clinical negligence specialist claimant solicitors across the country that people can access when something has gone wrong in a medical setting. It must be someone with the requisite set of skills to be able to investigate and unearth evidence in the most technically complex and challenging of situations including, sadly, fatal cases.

The Baroness Cumberlege Report “First Do No Harm” shows clearly what can happen when people are not listened to. The recent cases of Morecambe Bay and others show how important it is that people are able to access specialist lawyers to act as their voice. It is critical to patient safety that failings in health settings are properly investigated by specialists without fear or favour, and that the lessons from successful claims are learned across the health sector.

 

The Future

Many on the Claimant side -  including AVMA -  consider that the obvious and most cost effective way forward from here would be to re-instate Legal Aid for all clinical negligence cases.

Failing that, other proposed options currently being considered, such as the low value fixed fee scheme for clinical negligence, need to be treated with extreme caution. The lesson from LASPO of unintended consequences is clear. Moreover, any move to further restrict the commercial viability of specialist solicitors to take on cases in an environment already straightened by LASPO, is going to lead to specialist clinical negligence advice deserts. People will find it increasingly difficult to find a specialist to take their case on, and patient safety learning will be the poorer.

SCIL has actually put forward its own fixed fee proposal for low value clinical negligence claims that, has, at its heart, the twin goals of access to justice and patient safety, a copy of which is appended.

 

*AVMA – Action for victims of medical accidents is the biggest national charity organisation of its kind. It plays a leading role in advocating increased patient safety, openness and proper representation for people when things go wrong in a medical setting.