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…