Recent LASPO concessions - a 'step in the right direction'

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Recent LASPO concessions - a 'step in the right direction'

20th March 2012

A clinical negligence expert has said it was disappointing to hear that an amendment to the Legal Aid Sentencing and Punishment of Offenders (LASPO) Bill to keep legal aid for all clinical negligence cases was defeated by just seven votes.

Jacqui Hayat, head of the London clinical negligence department at Fentons Solicitors LLP, said: “Although it is very disappointing to hear Baroness Grey-Thompson’s amendments were so narrowly defeated, it has now been conceded that some obstetric cases where severe neurological damage is involved, can receive legal aid. This is at least a step in the right direction.

“However, it is frustrating to learn that the boundaries do not even include babies who suffer physical injuries due to medical negligence during or after birth and neither do they include children who are injured outside the ‘eight week window’.

“What is the rationale behind this eight week cut-off point?” added Jacqui, a partner at the firm. “Clearly, the objective is to include claims arising from the care surrounding birth and in-utero injuries, but the proposals mean that a child who has been severely disabled as a result of an accident which occurred 8 weeks and one day after their birth would be denied legal aid, yet a child who was injured a few hours before would be included.

“In the wake of the proposals put forward in Lord Jackson’s report - which will either exclude many clients entirely from pursuing a claim or require them to contribute to their costs, thus reducing their compensation, in some cases substantially- this is yet another attack on claimant’s and their ability to seek compensation.

“A number of our recent clinical negligence clients had difficult cases where liability was denied,” said Jacqui. “Had Lord Jackson’s rules been applied then, it is entirely likely some clients may not have been able to afford to bring a claim, while others may have ended up losing a considerable part of their settlement in order to pay costs.”

The LASPO Bill originally removed all possibility of clinical negligence cases being funded through legal aid. Justice Minister Lord McNally’s amendment to allow certain obstetric clinical negligence cases to receive funding is of course a welcome concession but it still means many claimants would be denied access to justice.

“Clinical negligence cases as we know can be extremely complex and costly,” said Jacqui. “This is why successive governments over time have agreed that clinical negligence needs to be kept in scope for legal aid. To remove legal aid funding would not only increase costs to the taxpayer and the NHS, but it would also leave huge numbers of vulnerable people without effective legal representation.”

The Government’s justifications for removing the possibility of legal aid funding from many clinical negligence cases are based on a number of false assumptions such as how previously legally-aided cases can simply be taken forward under a conditional fee agreement (CFA).

Liability and causation in clinical negligence cases can be far harder to prove than in the vast majority of personal injury cases. These claims can and do involve significant up-front costs that would prohibit many firms from being able to take on such cases under a CFA.

In many parts of the country there are very few firms who specialise in clinical negligence work and those that can do not have the financial power to fund substantial disbursements investigating, for example, a complex birth defect case. Without legal aid to fund the investigation stage of a potential clinical negligence case, some of the most vulnerable people will not even be able to establish whether they have a viable case.

Only in the strongest cases will small law firms take on the most complex cases and invest substantially in their investigation. The problems are compounded by Lord Jackson’s plans to abolish the recoverability of success fees,meaning firms and barristers will be unable to take on cases that are less likely to succeed in court and will have to be even more selective about cherry-picking the ‘best’ cases to avoid risk. This can only lead to more people being excluded from pursuing justice.

“It is neither rational nor fair to distinguish between a child who suffers an injury at birth, and that of a child who suffers a catastrophic injury due to clinical negligence at the age of three months, as a toddler, or later in childhood,” said Jacqui.

“There are obviously huge numbers of children who fall into these categories who have suffered horrific, life-long injuries due to medical negligence, who are currently relying on legal aid to investigate their claims,” she added. “If the government’s Bill goes ahead without further amendment, such cases will be excluded, leaving many families unable to afford to fight for the compensation they will need to fund their life-long care.  The end result will be severely disabled children will go without the care and treatment that they should receive in a civilised society.”

How can Fentons help?

Fentons has a specialist department experienced in handling claims relating to medical negligence. If you think that you have a case or require further information, contact Fentons on 0800 019 1297 or fill in the online claim questionnaire