Legal Eagle: Restricting access to justice
In June 2015 the Department of Health announced that it proposed via the Ministry of Justice to bring in a 'fixed recoverable costs' regime for clinical negligence cases.
The aim is to limit the amount of legal costs that would be paid to solicitors who succeed in recovering compensation on behalf of injured patients and their families.
This is rather like being involved in a road traffic accident and the other driver’s insurer deciding how much they will pay to repair your car, if at all, however much it really costs.
After the usual delay the proposals were published on January 30, and the consultation ends on May 1.
The idea is to restrict the amount paid to the lawyers and experts involved when a claim up to a value of £25,000 is successful.
Why should you care? We are all fat cat ambulance chasers according to certain sections of the media.
You should care because this is nothing to do with the supposed aims of earlier and cost-effective resolution for all those involved.
If that was the true aim then the NHS should stop fighting, defending and delaying claims.
The National Audit Office is reviewing the conduct of the special health authority that defends these cases.
The proposals will not improve access to justice for those claimants of a “low monetary value”, they will have precisely the opposite effect. They will not lead to early learning of lessons by the NHS.
The NHS has demonstrated over many years its complete inability to learn from harmful incidents.
When you think that your elderly relative or child has died as a consequence of someone else’s mistakes I may have to tell you that regrettably I cannot help.
The value of their life is below the threshold of these proposals and we can no longer afford to get the experts needed to investigate your case involved.
It is a conversation that regrettably I will have more frequently with bereaved relatives.
Legal aid to investigate the majority of cases involving clinical negligence was abolished in April 2013.
No-win, no-fee agreements were introduced and altered as an alternative. This did not have the desired effect of reducing the number of cases.
This is only about restricting access to justice for the bereaved and injured.
It can also be seen in the limitations that are being proposed for those injured by negligent motorists and soldiers injured by the negligence of the MoD.
* Ben Hoare Bell LLP has specialist Medical Negligence Solicitors that can help you.