Legal aid reforms: government promises to listen
On 20 December 2011 the Legal Aid, Sentencing and Punishment of Offender’s Bill will be scrutinised in committee. The bill was already subject to considerable criticism when debated during its second reading in the House of Lords on 21 November 2011. Criticism was widespread throughout the Lords and across the political parties. Only 3 out of 54 peers who spoke on the Bill offered any support.
The bill proposes to withdraw clinical negligence (together with aspects of domestic violence in family matters, and advice at police stations in criminal work) from the scope of legal aid in a reform which the justice minister, Lord McNally, claims will assist in cutting £2 billion from the Ministry of Justice’s £9 billion legal aid budget.
The government’s figures have been challenged by pressure groups including the Association of Personal Injury Lawyers (APIL) and Action for Victims of Medical Accidents (AVMA) in respect of clinical negligence. The Lords’ view was that the Bill attacked the rights of the disabled, sick, vulnerable, bereaved and injured; that access to justice will be denied to the weakest in society; that there will be little equality of arms between parties and courts may struggle to cope with a significant increase in claims pursued by litigants in person.
Peers were told that altering the availability of legal aid fails to recognise that access to justice is a vital constitutional principle. The Bill is already the subject of a critical report from the Lords Constitution Committee.
Civil costs reforms
Added to the concerns about withdrawal of legal aid, their Lordships’ criticised the civil costs reforms in part 2 of the Bill with the former Lord Chief Justice, Lord Woolf, stressing that the reforms to civil litigation funding were recommended on the basis that legal aid would remain for clinical negligence claims.
The government’s figures were called into question.
The total spend on legal aid in 2010 was £2.1 billion. Of this, the net cost of clinical negligence was £17.4 million, less than 1% of the budget. Of that £2.1 billion, £122.5 million is in respect of the running costs for staff, buildings etc. Against this background it is worth considering whether there is in fact the compensation culture claimed in some areas of the press.
The NHS Litigation Authority maintain the spend on clinical negligence cases increased dramatically for the year 2010 / 2011. However part of the significant increase in claims may be explained by the requirement for claimants now to send a copy of the letter of claim to the NHSLA at the same time as the defendant Trust. The number of places has not increased: simply a period when earlier notification was given to the NHS Litigation Authority. It is expected the figures will drop back to previous years’ levels, once the reporting requirement reform works its way through the system.
Available data suggests that in fact only a small percentage of negligently caused injury results in a claim.
The House of Commons Committee Report on patient safety found that 10% of all patients who are admitted to hospital suffer some form of harm (sixth report of session 2008/2009).
In March 2011 the National Patient Safety Agency showed that for the 6 months to 30 September 2010 there were over 500,000 patient safety incidents, an increase of 4%. This translates to over a million adverse incidents reported each year, of which 7% result in moderate harm, severe harm or death. That represents approximately 70,000 serious or fatal cases. Of those 70,000 cases, 50% are reported by clinicians to be preventable.
This would suggest that in each year there are 35,000.00 cases of serious or significant injury or death in hospitals which could have been prevented. By contrast the number of claims notified to the NHS Litigation Authority is 8,600.00. These figures are rarely quoted in the press.
This article should not be taken as a full statement of the law. It should be regarded purely as guidance and is no substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Wiseman Lee LLP. © Wiseman Lee LLP 2011