Medical negligence removed from the scope of legal aid

Following many months of Parliamentary scrutiny and media coverage, yesterday finally saw the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 receiving Royal assent. This means that the new act will become effective from April 1, 2013.

The Act includes a fundamental root and branch overhaul of the whole legal aid [or public funding as it is technically known these days] system. In effect, huge swathes of work are being removed from the scope of legal aid – all the way from medical negligence compensation to divorce.

The new Act is going to have a particularly dramatic effect on medical negligence. With the sole exception of certain strictly defined types of birth injury claim, medical negligence is, at a stroke, removed from the scope of public funding. What is this mean? In a nutshell, it seems likely that anyone wishing to make a medical negligence claim will have to either instruct a solicitor on a no win no fee basis, pay privately for their case or hope for the legal fees to be paid under any insurance cover they may have. The timing is particularly awkward given that medical negligence solicitors are themselves expecting huge change to the way no win no fee work.

An earlier government introduced no win no fee claims when they removed most personal injury claims from the scope of legal aid some years ago – leaving medical negligence within the scope of public funding at that stage. Personal injury solicitors therefore take on cases entirely at their own risk – but to make up for the risk of claims failing and those solicitors receiving no payment for the work [even though they may have had to pay for the costs of disbursements such as medical reports and access to medical records out of their own pockets], they were permitted to reclaim what is referred to as an additional “success fee” along with the cost of any of the event insurance. It seems likely that neither the success fee nor ATE insurance will be recoverable in future. In the absence of legal aid this means that medical negligence solicitors will probably stop taking most relatively low value medical claims and in addition will not take on risky claims – only running cases that seem somewhat close to 100 % certain to succeed. Many claims, that might be successful but which at the outset might either be uncertain or slightly risky will therefore never be run.

Many thousands of victims of medical negligence will not be entitled to the compensation they deserve. I appreciate these are times of austerity, but this doesn’t sound like justice to me.