Access to justice fears rise as Government tries to kerb legal costs.
The Government has announced plans to reduce costs to the NHS by fixing legal fees in cases of clinical negligence valued up to £100k. It is proposed that legal fees will represent a percentage of the compensation recovered by the claimant, though it is not yet clear what that percentage will be.
This is the second recent attack on clinical negligence claimants. In April 2013 the Government abolished Legal Aid for most clinical negligence cases, save for babies who suffer harm within the first 8 weeks of life. Claimant lawyers were also prevented from claiming a success fee in No Win, No Fee cases from the Defendant and must now deduct this from the injured person’s compensation. The success fee reflects the risk that the lawyer might not get paid if they lose and even if they win they won’t receive any fees until the end of the case, which could take many years.
“The Government have not allowed time for the last set of changes to take effect,” said Oliver Thorne, Head of Clinical Negligence at Slee Blackwell Solicitors. “There is going to be a huge run off of cases that still fall under the old funding regime, which did attract higher levels of costs. It is far too early to say that the changes introduced in April 2013 are not working and further reforms are now needed.”
Cases of clinical negligence can often take many years to settle and in some cases can run into double figures. “It’s the older cases that critics latch onto to when they highlight escalating legal fees. Those cases are not representative. The Government should be looking at more recent claims where the recent reforms have taken effect,” said Oliver.
In rare and extreme situations legal costs can sometimes seem excessive, but these examples are usually taken out of context. NHS Trusts often cause unnecessary costs to be incurred by trying to defend the indefensible. They defend cases where obvious mistakes have been made and don’t admit they are in the wrong until the legal fees have spiralled. It is then the claimant’s lawyer who is criticised. What do the Government expect claimants and their lawyers to do when valid claims are vigorously defended?
Oliver added, “there is already a safety mechanism in place to ensure that legal costs remain reasonable and proportionate. Whenever a clinical negligence claim succeeds the NHS Trust is entitled to have the claimant’s legal costs independently assessed by a court. If the court considers that costs have been unreasonably incurred then they will be disallowed.”
The figures are also skewed by the very high costs that the NHS litigation authority themselves incur. Many of the top earning legal firms are in fact lawyers who work for the NHS trusts and who are racking up costs defending hopeless cases. Oliver has called for this expenditure to be examined and feels that further savings could be made if the emphasis was on the prevention of medical mistakes in the first place, rather than trying to place restrictions on patients’ rights to seek compensation when their care has been substandard.
Oliver’s main concern is how this is going to affect people wanting to pursue a clinical negligence claim in future. Lawyers will not take cases where they are worried they won’t be paid for the work they have to carry out. Since the 2013 reforms some lawyers are already wary about taking on cases that might be worth under £25,000 because they fear they won’t be paid. While this isn’t the approach adopted by Slee Blackwell, the Government’s latest plans are likely to thwart patients’ access to justice.
A public consultation on this issue will take place in the Autumn. Oliver and the clinical negligence team at Slee Blackwell will be lobbying hard for the plans for further cutbacks to be shelved.
