Government proposals to reform the way civil litigation funding works have the potential to deny the most vulnerable in society access to justice, and increase incidences of clinical negligence within the NHS. As a specialist charity working for better patient safety and justice for people affected by medical accidents, Action Against Medical Accidents (AvMA) has developed considerable expertise in the way clinical negligence claims are handled. Therefore, we have scrutinised these proposals in great detail, and have a number of concerns about what their implementation would mean for potential clinical negligence claimants.

Firstly, it is impossible to look at these proposals in isolation. They have to be seen in the context of parallel proposals to take clinical negligence out of scope for Legal Aid. Whatever you think of Lord Jackson’s review on this subject, these proposals need to be seen against the background of his own vitally important qualification:

“I… stress the vital necessity of making no further cutbacks in Legal Aid availability or eligibility… the maintenance of Legal Aid at no less than present levels makes sound sense and is in the public interest.”

In our view, the combined effect of implementing both sets of proposals would be catastrophic. Thousands of would-be claimants in clinical negligence could find themselves unable to make a claim at all, including some of the most vulnerable in society. Not only would they no longer be able to get Legal Aid to fund their claim, but also the changes to the way conditional fee agreements (CFAs) operate would mean that they could not get after-the-event (ATE) insurance to protect them in case they lost and were liable for costs.

In addition, they might not be able to find a lawyer to take on their case unless it was a sure-fire winner, and the damages recoverable were very considerable. This would not be the situation in many serious cases, such as the negligent death of an elderly person or the death of a child. Finally, they might find that even if they were successful, they could be short-changed by their damages being raided to pay legal costs.

The shocking fact is that the proposals only achieve their primary objective of saving money for the government if large numbers of people who would have had a meritorious claim are unable to take it forward. Otherwise, the figures do not add up. That is so at odds with the proud British tradition of ‘justice for all’.

Apart from specific arguments about the merits or otherwise of each proposal, the government should be very wary of unintended consequences. One of the most positive developments, acknowledged by all sides in clinical negligence litigation, has been the development of specialist clinical negligence panel solicitors. The proposals would throw open the market once again to non-specialist solicitors prepared to ‘have a go’ under a CFA. There could be an explosion in unscrupulous ‘claims farming’.

Many claimants, unable to fund the services of a specialist solicitor, will become litigants in person. These would all add to costs, making a large dent in the perceived savings hoped for in these proposals. This could also have the effect of diluting dramatically one of the most powerful incentives there is for the NHS to improve patient safety – the removal of large numbers of claims. The cost to the state of treating increasing numbers of patients with serious injuries due to clinical negligence could dwarf the projected savings from the proposals. Not to mention the human cost.

We are not in the game of resisting change for the sake of it. There are a number of ideas in Lord Jackson’s proposals which, if adapted, could work well. We are sympathetic to the need to find better and less costly ways of resolving clinical negligence claims. But that can be done without denying access to justice for some of the most vulnerable in society.

What we need is more radical and joined-up thinking on the part of the government. How much money overall could have been saved by bringing all clinical negligence in scope for Legal Aid, rather than taking it out? Currently, it costs the NHS millions more to settle cases on CFAs than it would under Legal Aid. What about introducing a ‘no-fault’ compensation scheme that builds on the intentions of the ill-fated NHS Redress Scheme? These are just some of the ideas we are putting forward. However, we will have to wait and see to what extent the government is able to take on board the many representations they are receiving.

Peter Walsh is chief executive of the Against Medical Accidents

Tags: Clinical negligence, Conditional fee arrangements, Legal Aid, Lord Jackson, NHS