Legal aid reforms will be catastrophic for victims of medical negligence

22 November 2010 by Henry Witcomb

The government’s proposed reforms to legal aid will have a catastrophic effect on those who have suffered as a result of negligent medical treatment.

When Kenneth Clarke informed Parliament on Monday that

Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where there is risk of serious physical harm or the immediate loss of their home.

he clearly did not mean that the destruction of a person’s life or the suffering of seriously physical harm through the mismanagement of their medical treatment was to be included within this. If he had meant that he would have proposed at the same time that clinical negligence would continue to be funded by legal aid.

Instead of safeguarding the interests of those citizens – such as a catastrophically injured child – who find themselves in the greatest need at a time when they are least able to meet it, what Kenneth Clarke proposed is nothing short of the emasculation of the legal aid system and a full frontal attack upon access to justice.

Serious though this allegation may sound there can be little doubt that the present administration knows full well what effect its proposals will have. In truth, it does not care. It knows as both the legal aid funder of clinical negligence litigation and as the defendant compensator (as it is in the vast majority of clinical negligence cases) that access to justice is extremely costly to it in costs and damages, and that by attacking access to justice its outlay in both regards will be reduced substantially.

Of course, it has been said by the administration and will no doubt be said again and again that in substitution for legal aid there will be put in place a revised ‘no win, no fee’ system more than sufficient to meet the access to justice shortfall. This contention is spurious. The reasons are two-fold. First, the author of the revised ‘no win, no fee’ system does not agree that this is the case as is plain from his report. Secondly, the revised ‘no win, no fee’ proposals are themselves subject to serious drawbacks (a subject for another day).

In the words of Lord Justice Jackson, the author of the revised ‘no win, no fee’ system proposals, the maintenance of legal aid is crucial to his proposed changes to the no win, no fee system. Lord Justice Jackson said this about legal aid in his recent report on the funding of litigation:

Legal aid is still available for some key areas of litigation, in particular clinical negligence, housing cases and judicial review. It is vital that legal aid remains in these areas. However, the continued tightening of financial eligibility criteria, so as to exclude people who could not possibly afford to litigate, inhibits access to justice in those key areas. In my view any further tightening of the financial eligibility criteria would be unacceptable.

and

I do not make any recommendation in this chapter for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas.

So the question must be asked why is the Government ignoring Lord Justice Jackson’s recommendations, stated in the strongest terms, in relation to legal aid whilst at the same time relying upon his report in support of its other central proposal, that is the proposed change to the ‘no win, no fee’ litigation funding regime.

The answer is that this Government has no interest at all in maintaining access to justice because, as the defendant, it sees this as the problem itself.

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Read more:

• Legal aid cuts: Do we spend more on legal aid than other countries?
• Legal aid cuts announced, significant reduction in funding of civil and family cases
• Legal aid cuts, the aftermath