The Department of Health (DoH) is set to rein in its plans for fixed recoverable costs in clinical negligence cases and introduce them just for claims worth up to just £25,000, it emerged today.
The move, if confirmed, would represent a major rethink since the policy was first announced in August 2015, when the limit was going to be cases worth at least £100,000 and maybe as much as £250,000.
Minutes of the Civil Procedure Rule Committee’s July meeting, distributed today, recorded: “Amanda Stevens, chair of the [CPRC] sub-committee, reported that there had been a change in policy at the Department of Health and that they intended to consult in respect of claims up to £25,000, which comprised approximately 60% of clinical negligence claims.
“The material worked up by the subcommittee on a draft protocol and illustrative rules would be amended accordingly. The date of publication of the consultation was unknown.” This remains the case, although it is thought to be imminent.
The DoH had no comment ahead of publication of the consultation, which will include a question about what the threshold should be. Once the consultation is complete, it intends to implement the changes as soon as possible.
If £25,000 is the limit, the shift in government policy would represent a major lobbying victory for the Association of Personal Injury Lawyers (APIL), the Society of Clinical Injury Lawyers (SCIL), the Law Society and the charity Action against Medical Accidents, which have been working together to develop a scheme for fixed costs for claims up to that amount.
APIL president Neil Sugarman said “it would show that the government has listened to arguments that a quarter of a million pounds is not a low-value case, and that cases of such magnitude do not suit a fixed process”.
He continued: “A fixed-fee system for cases up to £25,000, however, could be workable. The fees would have to be fixed at a level which makes the work viable, and the process itself must also be fixed.
“Other conditions, such as admission of liability and requirement of just one medical report would need to be met for such a scheme to be effective. This would give the Department of Health the opportunity to reduce costs for the NHSLA, control defendant behaviour and secure representation for injured patients by specialist lawyers at a fair rate of pay.”
SCIL chairman Stephen Webber said: “We welcome the apparent change in the value of claims that will be covered by fixed recoverable costs but we need to see the scheme to ensure that it allows injured patients to obtain justice.
“It is essential any scheme excludes or has appropriate provision to deal with very serious cases that may have limited financial value, such as fatal cases involving the young and the elderly including representation at inquests.”
Nina Ali, clinical negligence partner at London firm Hodge Jones & Allen, said this would be “a welcome change of policy”.
She added: “However, unless there is a proper and effective consultation and ultimately acceptance that there are a number of case types that must be made exceptions of, this change of policy and playing with numbers is meaningless.
“In order to ensure that that some semblance of justice in the absence of legal aid for any case other than a birth injury prevails, exceptions must include, fatal cases, cases with human rights issues, cases that concern the vulnerable in society such as the elderly and people with learning disabilities.”
The news has come on the same day that the DoH announced plans to consult on a new rapid resolution and redress (RRR) scheme for maternity-related clinical negligence claims.
Forming part of a wider action plan to improve maternity safety, in cases of “avoidable” harm it would offer “timely access to financial support without the current obligation on families to launch a formal legal process”. At present, the average time families have to wait for resolution of a case is 11.5 years.
Families eligible for the RRR scheme would be given the option to join an alternative system of compensation that offers support and regular payments without the need to bring a claim through the courts, and the scheme would ensure families receive personalised support including counselling, case management and legal advice.
Health secretary Jeremy Hunt said: “Even though we have made much progress, our stillbirth rates are still amongst the highest in Western Europe and many on the frontline say there is still too much of a blame culture when things go wrong – often caused by fear of litigation or worry about damage to reputation and careers.
“These comprehensive measures will give practical support to help trusts improve their approach to safety – and help to foster an open and transparent culture so that the courts become a last resort not an automatic first step.”
Mr Sugarman said: “Compensation for these catastrophic injuries has a very clear purpose and, in these cases in particular, it is critical that the right amount of compensation is made available to injured children to ensure they receive the care they desperately need.
“We have yet to see the details of the consultation, but we will be reminding the Department of Health that children suffering cerebral palsy and brain damage at birth need round-the-clock medical care, specialist equipment and support for the rest of their lives.
“The fact that the number of claims for these injuries has barely changed in the past 10 years is a national scandal, and we welcome any attempt to improve this situation and the legal process which families have to navigate. But not at any price.”