Will those legal aid lawyers stop at nothing?
Chris Gawne, Medical Negligence Partner and birth injury specialist at Pannone examines the spin behind the removal of legal aid for medical negligence cases.
“In the lobbying of this house and the upper house we have had an army of lawyers advancing behind a front row of women and children – vulnerable claimants who say they would not be represented if they are not paid as much as they are now. I am afraid I do not believe that.”
Kenneth Clarke – Justice Secretary
Referring to the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) which will be debated by the House of Lords in the coming weeks, this is the view of the Justice Secretary who suggested in a House of Commons debate that we solicitors are using vulnerable clients as a front to protect our own interests. Has the sharp legal mind of the Justice Secretary rumbled clinical negligence lawyers? Is it all a sham?
The simple facts are that legal aid for medical negligence cases is currently only available for those on benefits and those in households with very low incomes. Because of the strict financial eligibility criteria, legal aid tends to be used most often for children’s cases. Quite rightly, legal aid is only available where the likely value of compensation is significant. Those whose compensation is likely to be significant tend to be the more seriously injured. Often legal aid is used to fund investigation of claims for children with birth injuries.
These cases can only be investigated through reports from independent expert doctors who will advise on whether negligent care was provided and, if so, whether it caused injury. The NHS will only pay compensation where the claimant can prove his case using independent medical expert evidence (sometimes they are pretty resistant even then, but that is another story). In the absence of legal aid from the likes of Barristers Stobart, even if solicitors are willing to work for nothing, somebody will have to pay for those reports to be obtained. So it is those with very limited means and significant injuries; often children, those with brain damage from birth injuries, those with cerebral palsy; those who will require hip replacements in their twenties because hip dysplasia was not diagnosed, truly vulnerable people who stand to lose out under LASPO.
Ken Clarke is right in one respect: people shouldn’t worry about the lawyers. We can and will find a way to survive and prosper. Some of those clients whose cases are currently pursued using legal aid will be able to use alternative funding. But many won’t. Legal aid in medical negligence cases is performing exactly the role it should: that of a safety net for people with no other options to ensure that their rights are protected. LASPO removes that safety net.
Don’t just take my word for it. Even Jackson LJ, author of last year’s long awaited and influential report on the costs of civil litigation, and one who is hardly seen as an apologist for solicitors representing claimants in injury litigation, has gone on record that LASPO is wrong to remove medical negligence from the legal aid scheme:
“Let me make it plain that cutbacks in legal aid are contrary to the recommendations in my report… of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate.”
Jackson LJ, 5 September 2011, Cambridge.
Even the body which represents NHS Trusts in medical negligence litigation is in favour of retaining legal aid for medical negligence claims:
“We question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid, particularly those involving brain damaged children and adults…Overall we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria.”
NHS Litigation Authority,
Response to MOJ Consultation on the Reform of Legal Aid
But the views of Jackson LJ, the NHSLA as well as those of the vulnerable people who would be affected by LASPO and those of us who represent them, fell on deaf ears. Kenneth Clarke is continuing to contest the importance of public funding in enabling children injured at birth access to the justice they deserve.
LASPO has passed through the bastion of democracy that is the House of Commons. In the coming weeks, ironically, but not for the first time, it falls to the privileged, unelected members of the House of Lords to protect the most vulnerable members of society.