Capping legal costs in clinical negligence will make the NHS less safe and deny access to justice for deserving cases

Published: 30 Jan 2017

AvMAis warning that Department of Health proposals for capping legal costs recoverable in clinical negligence cases, published today, lack compassion and understanding of the plight of people affected by negligent treatment and would have serious unintended consequences for access to justice and for patient safety.

AvMA believes that the proposals would mean that many clinical negligence cases could not go ahead, because most specialist solicitors would not be prepared to take them on if they are not able to recover anywhere near their actual costs in fighting a claim.

The charity also believes that the proposals would create a perverse incentive for NHS bodies to adopt a ‘delay and defend’ culture in the knowledge that many cases would have to be dropped if liability was denied. This would mean that for many people it simply wouldn’t be possible to challenge the NHS. Just as serious, patient safety lessons that could prevent future tragedies would not be learnt.

Low value claims can be just as serious and complex as cases involving high levels of compensation. Low value claims will typically include stillbirths, child deaths and deaths of older people. The Department of Health’s own equalities assessment acknowledges that older people’s access to justice would be disproportionately affected.

AvMA also questions the timing of the proposals, which come before seeing the outcome of current reviews by the Ministry of Justice into the effect of the previous legal reforms through the Legal Aid Sentencing and Punishment of Offenders Act (LASPO); by Lord Justice Jackson into the very notion of fixed costs in civil litigation; and by the National Audit Office into the role of the NHS Litigation Authority in reducing (or increasing, as the case may be) legal costs.

AvMA Chief Executive Peter Walsh said:

“We will analyse the proposals in detail. However, it is clear from what we have seen so far that, as they stand, they lack compassion and understanding and would seriously harm both access to justice and patient safety. This debate should not be about lawyers, but about real people harmed through no fault of their own who may not be able to challenge the NHS if this goes ahead.”

“Not only would these proposals potentially deny access to justice in some of the most serious cases, but they would also make the NHS unchallengeable in some cases, and prevent lessons being learnt. The human costs in these cases far outweigh the financial costs and are perfectly avoidable if patient safety is improved.”

“We would never condone solicitors claiming over-the-top legal fees, but this is rare and is already controlled by the courts. The NHS Litigation Authority is also able to challenge costs where there is a case for doing so. In our experience, high costs are usually a result of the NHS not investigating incidents properly and dragging out claims with unreasonable denials of liability. However, the proposals have taken no account at all of defendant behaviour unnecessarily escalating costs. Instead of making it harder for claimants to challenge NHS denials, the Department of Health should insist on better investigation of incidents and early admission, with strong penalties if this does not happen.”

“We together with other stakeholders have continually offered to discuss the perceived problems and come up with suggestions that would preserve access to justice and promote patient safety but so far this has largely fallen on deaf ears. It is vital that people respond to this consultation demanding a rethink on these ill thought through proposals”.