Legal aid: Government backs down on clinical negligence and domestic violence
1 March 2012
The Ministry of Justice has proposed two important amendments to the Legal Aid, Punishment of Offenders and Sentencing Bill.
As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.
As to domestic violence, the amendments are to provide legal aid for civil claims where:
(a) there has been, or is a risk of, domestic violence between A and B, and
(b) A was, or is at risk of being, the victim of that domestic violence.
The clinical negligence amendments are as follows:
20A (1) Civil legal services provided in relation to a claim for damages in respect of clinical negligence which caused a neurological injury to an individual (“V”) as a result of which V is severely disabled, but only where the first and second conditions are met.
(2) The first condition is that the clinical negligence occurred—
(a) while V was in his or her mother’s womb, or
(b) during or after V’s birth but before the end of the following period—
(i) if V was born before the beginning of the 37th week of pregnancy, the period of 8 weeks beginning with the first day of what would have been that week;
(ii) if V was born during or after the 37th week of pregnancy, the period of 8 weeks beginning with the day of V’s birth.
(3) The second condition is that—
(a) the services are provided to V, or
(b) V has died and the services are provided to V’s personal representative.
The obvious question arising from this amendment is what the rationale behind the 8-week-from-birth cut off is. Clearly the aim is to include “obstetric” claims, that is claims arising from the care surrounding birth and “in utero” injuries. But the effect of the proposals will be that a child who has been severely disabled as a result of an accident which occurred 8 weeks and 1 day after their birth would be excluded from legal aid, but a child who was injured a few hours before would be included.
This seems arbitrary, particularly as there appears to be no proposal to give a judge and/or the Ministry of Justice discretion to include other victims of negligence within scope in exceptional circumstances. I imagine that the proposals in their current form could be the vulnerable, if passed, to a human rights challenge – perhaps even age discrimination? Food for thought…
As an epileptic, I took a great deal of interest in the Epilim case and brought it to the attention of Nick Clegg who, at the time, had never heard of it. During that same meeting with Nick Clegg I expressed my concerns about removing legal aid from rape victims. I pointed out that removing legal aid from such cases would be a breach of Article 6 of the HRA. I agree with Peter Walsh, the chief executive of Action against Medical Accidents, who was quoted in the Guardian as saying: “It’s a tiny step in the right direction but it’s not enough. It makes the decision to take other clinical negligence cases out of scope even more irrational.” http://www.guardian.co.uk/law/2012/feb/29/legal-aid-bill-concessions-justice-ministry If 49% of the NHS is privatised there will be an increase in medical negligence cases. Andrew Lansley is already aware that that the NHS and rich pharmaceutical companies have had to pay out huge sums of money particularly in multi-party cases want to prevent such litigation. On the very week that David Bodey of Irwin Mitchell got the Epilim case to the High Court (against Sanofi-Aventis) legal aid was pulled. It turns out that the French pharmaceutical company Sanofi-Aventis receives funding from the government via UK Trade & Investment. For those who haven’t heard of the Epilim case, here are a few links to a few articles:
The Epilim case shows the flaws in the legal aid regime
Families who claim the epilepsy drug was linked to birth defects have few options left after the LSC withdrew funding
Families devastated after legal aid withdrawn for birth defects case
Parents say epilepsy drugs containing a controversial anti-convulsant are to blame for disabilities
Epilim test case: Menzies Campbell accuses Legal Services Commission
Senior Lib Dem accuses legal aid body of being ‘judge and jury’ in withdrawing funding from anti-epilepsy drug action
The 8 – week limit would cover most neonatology negligence cases, one example being brain damage as a result of failures in the treatment of hypoglycaemia. Most babies are at greatest risk of this in the first week of life, and prematurity is an added risk factor. It also covers early onset strep B meningitis in the newborn, but not late onset – the latter is rare, certainly, but perhaps more likely to be negligently missed because the doctors aren’t expecting it! Both can result in severe disability. I’m sure there are other examples but those come to mind immediately.
A stab in the dark?
It is food for thought, though ‘a problem put off for another day is a problem halved’ appears to be the philosophy of the MoJ these days.
My personal view is that the Government always knew it was going to give ground on this (and the DV) definition – in fact, didn’t The Sun(!) throw this Clin Neg concession out into the public domain following a leak, some time ago? Well, whichever paper it was it was certainly out there, which appears to indicate Ministers sat on it for some reason… Oh, and here we are, just about to enter Report Stage and an excellent opportunity for Lord McNally to demonstrate the Coalition’s willingness to listen *cough* and the effectiveness of the Parliamentary Committee Stages *choking cough*
As to the 8-weeks I imagine that, as with much of the austerity rhetoric, the line will simply be that the Government had to draw the line somewhere. As it is, I would be curious as to whether the MoJ has assessed the impact of setting an 8 week limit against there being no age limit. If there would be little difference between the two in terms of comparable savings to the public purse, then why bother setting a limit at all? If there would be considerable estimated savings, then we would be clear that the concession in no way addresses the real scale of the problem with Clinical Negligence claims in respect of this type of client group
On the other hand, if it has not assessed the comparable impact, then is it just guess work – a stab in the dark, perhaps?
Thanks for the comment Patrick – I imagine the 8-week limit could be connected to the time in which newly born babies are in the most danger, but I would be interested to see the rationale…
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