Removing clinical negligence claims from the scope of public funding – will the neediest victims be denied justice?

28 Sep 2011

Last week AVMA, Action against Medical Accidents, a medical safety charity, launched a Judicial Review challenge of the Ministry of Justice decision to take Clinical Negligence out of the scope for legal aid. That decision is part of the Legal Aid Sentencing and Punishment of Offenders Bill which is currently going through Parliament. AVMA is being represented in its challenge by its own in house legal team and is calling for the amendment of that part of the Bill.

Currently, a relatively small percentage of people who have sustained injury as a result of alleged negligent medical treatment they have received from healthcare professionals are eligible to be granted a Public Funding Certificate from the Legal Services Commission, to cover the costs of pursuing investigations into their potential Clinical Negligence claims.

This is because in order to be granted a Public Funding Certificate, all applicants must satisfy a strict financial means test. Those who receive income support and income-based job seekers allowance are automatically financially eligible, but all other applicants have to provide full details of their income and capital for the Legal Services Commission in order to assess their eligibility. Furthermore, all cases must satisfy an already tough merits test, part of which involves the Legal Services Commission balancing the amount of legal costs it will take for the case to be investigated with the likely amount of compensation the applicant will receive if the case is successful.

However if Clinical Negligence claims are taken out of the scope of legal aid altogether, it is anticipated that the vast majority of those clients who would have been eligible to receive Public Funding will be unable to afford to pay the legal costs themselves. Not least because those clients are often having to bear the financial burden of looking after someone with a severe disability or cope with a severe disability themselves. The legal costs involved can easily run into a spend of three or four thousand pounds just for a client to discover whether they have a potential claim.

Although the Ministry of Justice argues that solicitors will still be able to offer their clients "No win, No fee" Agreements to pursue their Clinical Negligence claims, AVMA argue that many such claims are unlikely to be taken on by solicitors on that basis because they are considered too risky.

Even the NHS Litigation Authority, the organisation that represents NHS Trusts in Clinical Negligence claims brought against them, opposes this proposal.

Laura Rowe, a personal injury lawyer says "The real worry is that if the proposed cut is made, it will only succeed in denying the neediest victims of negligent medical treatment of their access to justice".