Clinical negligence is one of the areas that is going to be affected by the widespread legal aid cuts that are due to come into force on 1st April this year. These cuts are being introduced by the legal aid, Sentencing and Punishment of Offenders Bill, and will also affect other cases, such as those that come under family law and welfare claims, effectively reducing access to justice for people who cannot afford to pay for their own legal advice.
What this means for clinical negligence claims is that a large number of children and adults who have sustained clinical injuries will no longer be able to receive legal aid support in order to be able to make a claim for compensation for those injuries.
There is some good news among the general bad and that is that a small number of clinical negligence cases are still covered by legal aid – children who have sustained a neurological injury that has resulted in a severe disability which arose during the period of pregnancy, during the birth itself or in the eight week post natal period – so essentially birth injury cases and babies injured up to eight weeks old.
Although this is welcome news for those who suffered serious injuries at birth and who have sustained lifelong disabilities, it means that for others there will be no opportunity to even investigate or receive advice on potential claims without paying for it.
One of the major concerns of this cut in funding is that it may result in many of those with potential claim having no access to legal funding for a specialised clinical negligence solicitor.
This could result in people turning to a general personal injury solicitor, rather than a clinical negligence specialist, even though part of any successful claim may then be lost in success fees if the case is won – or worse, a lack of specific clinical negligence expertise on the part of the legal representative could simply mean the case is lost and the claimant is left with costs.
Concerns about access to justice for those who don’t fall within the very narrow category of adults and children who qualify for clinical negligence legal aid are widespread.
According to Peter Walsh, who is the chief executive of Action Against Medical Accidents (AvMA), a charity that campaigns for patient safety, “it’s doubly bad because some people will be unable to get justice, and those who do will end up costing the state more."
With respect to the costs issue, Peter Walsh highlighted that while the cuts to legal aid for medical negligence may save £10 million, the new plans may actually end up being more costly. This is because of success fees that will be added on to the amount paid out in damages where a claimant who has not been a recipient of legal aid wins a case – Walsh estimates this could cost three times more than the projected savings.
Stephensons has a large and expert team of clinical negligence solicitors and we offer a specialist and experienced service. If you are looking to make a private claim for clinical negligence then we are able to help. We will also be able to offer legal aid to those who remain eligible.