The prospect of fixed recoverable costs for clinical negligence cases worth up to £25,000 received a cautious welcome from some solicitors, but others have condemned the Department of Health (DoH) for acting before key reviews that could affect its decisions have been completed.
The DoH finally announced its plans yesterday  – some 15 months later than expected – and restricted them to a far lower level of case than originally proposed.
Law Society president Robert Bourns said he was pleased that the DoH had dropped its initial “shocking” idea of applying fixed costs to cases worth up to £250,000.
He said: “We remain concerned that the draft plans could see harmed patients denied the correct level of compensation unless the proposed scheme excludes complex cases and includes exemptions for unusual circumstances. It is also critical that fixed costs are set at a level which is sustainable for expert solicitors to continue to operate in this area…
“There is a serious risk that those most affected by these proposals would be the vulnerable in society, such as the elderly and people who are disabled, whose cases can be complex and challenging but not necessarily the highest in value.”
The society also said that the effects of the LASPO reforms were not reflected in the NHS Litigation Authority’s (NHSLA) 2015/16 accounts, which were used as the basis for yesterday’s announcement.
A Law Society freedom of information request revealed that as at 31 March 2016, fewer than 20% of cases that closed in 2015/16 with a damages payment were funded by conditional fee agreements entered into after 1 April 2013.
“This is significant as it clearly demonstrates that the effects of the measures introduced in 2013 and likely savings envisaged are not reflected in the 2015/16 NHSLA accounts in any substantive way. This and other data are critical to inform the decision on whether or not any further action on costs is necessary.”
The Association of Personal Injury Lawyers also gave the consultation a “cautious welcome”.
“The fact that the government has decided to tone down its original plans will come as a relief to injured patients,” said president Neil Sugarman.
“A fixed-fee regime for more straightforward cases could be workable but the priority has to be the development of a quick and efficient system. It should then be possible to fix legal costs to reflect the speed and efficiency of the new process…
“Above all, we need an end to the ‘deny, defend and delay’ approach by medical professionals when something has gone wrong, which is all too common.”
However, Stephen Webber, chairman of the Society of Clinical Injury Lawyers, said he was “astonished” that the DoH had published the consultation given that the National Audit Office (NAO) has just started an investigation into the department’s handling of these cases and the rising costs to the taxpayer.
“The NAO will not report to Parliament until July and it seems the DoH must fear criticism of a culture of ‘deny, defend and delay’ which just adds further misery to the innocent victims of clinical and surgical mistakes’.
“Our members have urged Jeremy Hunt to sit down and launch a full investigation into this area and not risk patient safety by denying many families and parents access to justice for the loss of life or life changing injuries.
“Instead he has chosen to avoid the NAO and Parliament and go into print with his mind seemingly already made up before his consultation has even started.
“We and many charities will continue our fight for strong and fair reforms including an examination of how the department, health trusts and the NHSLA deal with victims and do it in a way which can make safe savings.”
Patient charity Accident against Medical Accidents (AvMA) said it was “deeply disappointed” that the DoH had gone ahead and published its proposals before the outcome of three reviews were known: the NAO review, the Ministry of Justice’s review of the effect of the LASPO reforms; and Lord Justice Jackson’s review of fixed recoverable costs.
AvMA chief executive Peter Walsh said: “We would never condone solicitors claiming over-the-top legal fees, but this is very rare and is already controlled by the courts. The NHSLA is also able to challenge costs where there is a case for doing so.
“In our experience, high costs are usually a result of the NHS not investigating incidents properly and dragging out claims with unreasonable denials of liability. However, it seems the department has taken no account at all of defendant behaviour unnecessary escalating costs.”
“We will respond in detail once the consultation document is published, but based on what we know so far, these proposals would deny access to justice in some of the most serious cases, make the NHS unchallengeable, and prevent lessons being learnt. The human costs in these cases far outweigh the financial costs and are perfectly avoidable if patient safety is improved.”
Agata Usewicz, head of the clinical negligence team at London law firm Hodge Jones & Allen, said that despite the lower level of cases involved, “there remains a very real risk that that vulnerable and already disadvantaged groups of people will simply not be able to access justice”.
She explained: “If these proposals are to be implemented and access to justice preserved, fatal claims, still-births, claimants lacking mental or legal capacity and, claims where the client has a very short life expectancy must be exempted.
Qamar Anwar, managing director of marketing collective First4Lawyers, said: “It is right to acknowledge and applaud the government for taking on board many of the access to justice concerns about fixed recoverable costs in clinical negligence and choosing to limit them to cases worth up to £25,000, rather than a higher figure.
“This still captures serious cases, however, and the DoH needs to see this process through by adopting an evidence-based approach to what the costs should be – they must be set at a realistic level, rather than one that makes it uneconomic to pursue a claim.
“Lawyers’ fees are an easy target, so it is vital that the department shows the same vigour in delivering the underlying culture change required in the NHS to learn from past mistakes and become a more open and transparent organisation.”