Legal aid: Government backs down on clinical negligence and domestic violence

1 March 2012 by

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…

Read more:

4 comments


  1. busybeebuzz says:

    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
    http://www.guardian.co.uk/law/2010/nov/29/epilim-legal-aid-flaws
    Families devastated after legal aid withdrawn for birth defects case
    Parents say epilepsy drugs containing a controversial anti-convulsant are to blame for disabilities
    http://www.guardian.co.uk/law/2011/jan/28/legal-aid-withdrawn-birth-defects
    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
    http://www.guardian.co.uk/law/2010/nov/09/epilim-test-case-menzies-campbell

  2. Mary Ruck says:

    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.

  3. 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?

    1. Adam Wagner says:

      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…

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: