I am an occupational therapist and brain injury case manager. I accept expert witness instructions for individuals who have sustained complex disabilities including a severe brain injury. I am commenting in a personal capacity as an occupational therapist, but also as a professional who runs a case management service with other case managers from various health professions, and who has participated in the active medicolegal form the Royal College of occupational therapists.
There is a fundamental inequality in the current arrangements.
The very low LAA fees means that the Claimant is unlikely to be able to instruct an expert with the same level of knowledge, skill and expertise as the Defendant is able to, who has no restriction on the fees that they may choose to pay. Quantum experts within personal injury claims, including nurses, occupational therapists, speech and language charge out rates are significantly higher than the LAA rates, usually over £100 an hour more, and since the LAA rates have not increased for 7 yr and are less now than they were prior to that, this disparity is getting wider each year.
As would be expected the hourly rate for the expert includes and needs to incorporate all of their own costs including the ongoing training, professional costs and office costs. Working at the LAA rates is simply not viable, when taking account of all of the quite significant costs in order to provide an expert witness service. It is therefore evident that the legal aid applicant, who will by their very nature often beat the most disadvantaged and injured person within society, is faced with knowing from the outset that their solicitor may not be able to instruct the best person for the job.
The second inequality is within the rates for different health professionals. The rates for occupational therapists are significantly lower than for other health professionals, and this is inequitable to the work undertaken, the training, and the impact of their evaluations within the claim. Occupational therapists are employed within local authorities and the NHS on the same pay scales as their nursing and allied health professional colleagues including physiotherapist, speech and language therapists, and nurses. Yet the LAA rates allow very different rates for each profession with no explanation of any clinical reasoning or evidence base behind this. I would add that there it is likely that there is a significant gender inequality as a result of this since the majority of occupational therapists are female, and more so than with physiotherapist and nurses.
Clearly it is evident that as a public body the LAA has a duty to society and to the taxpayer to provide value for money. However there is also a fundamental requirement to ensure equality of justice and encourages those working within the system to find workarounds to the fundamentally inadequate fee structure.
As expert witnesses, we see the impact upon claimants if those instructed to provide expert evidence do not have the necessary skill and knowledge to do so. As well as working as expert witnesses we are all members of society, and could find ourselves on the other side of the fence at any time. This is about individuals within society having equal access to justice, by recognising that the role of expert witnesses is fundamental to the Court process.
I make no comment on this area.
The use of technology as with many aspects of life has significant potential and some important pitfalls to be aware of.
Since lockdown I have been involved in a number of remote assessments, and evaluation of these. I would make the following comments. There is limited evidence of the efficacy of assessments undertaken remotely, and this is particularly the case where standardised assessments are completed. There is a risk that undertaking standardised assessments remotely not only provides unreliable data at the time, but prevents the individual having further assessments undertaken face-to-face in the near future.
Remote assessments are extremely difficult one individual has some or all of cognitive, behavioural, and psychological difficulties. The challenges of individuals environments, and then need to ensure confidentiality and security of information being shared can be readily overlooked.
My own practice is that we have embraced remote working wherever possible, and I would fully support doing so where this is feasible. Certainly, this has had a positive benefit in terms of travel costs to clients. Nevertheless, it is also essential that the limitations are acknowledged and recognised.
I recently was present with a gentleman who had suffered a brain injury, whilst he underwent remote assessment of his capacity to manage finances and affairs and to litigate. It was quickly apparent that the assessor was not able to see exactly how gentleman was choosing to answer the questions. For example, basic orientation questions appeared to be answered accurately, but the client had a diary open in front of him to check day, date and year. The assessor was unable to see the client when he got up from his chair, and could not hear what was being said to another person out of view. On this occasion I took the opportunity to speak with the assessor afterwards, and he had been surprised by my feedback, having been completely unaware of what had occurred.
My view is that with the progression of technology within the court system, it is essential that more than a basic single forward-facing screen will be required. This is inadequate to replicate what can be seen in a face-to-face assessment, and I envisage that the way forward may be to have local videoconferencing facilities, for example in public libraries or within local authority offices, or even within (now often empty) office buildings, where individuals can easily travel to, but where the conferencing facilities are of a high quality, and are able to offer surround video in a confidential setting.
In answering this question, I am answering as an individual rather than as somebody who undertakes expert witness work. In my view the challenges aren’t to provide a service which is fit for purpose and which meets the challenges of the future.
This means being able to offer a more streamlined service, with access to high quality of expertise, at a quicker pace, and extending the role and range of legal aid funding. It is a seriously false economy to continuously restrict the criteria for legal aid, resulting in a very large percentage of people for whom justice will never be available.
Where legal aid is available, it is important that there fundamental inequity is tackled as identified in question one.
A fundamental review of the legal aid system is required that is not based with the sole purpose of cutting costs.