Fixed recoverable costs proposals for clinical negligence
In 2017 the Department of Health consulted on controversial proposals to limit the legal costs that solicitors can recover when they win cases with low financial damages on behalf of patients who have been harmed through clinical negligence (‘fixed recoverable costs’).
In spite of a clear majority of respondents to the consultation clearly stating opposition to the proposals and that they represented a major threat to access to justice and patient safety, and a letter from nine national charities asking for the proposals to be dropped, the Department of Health maintained that they wanted to press ahead.
The Ministry of Justice asked the Civil Justice Council (CJC) to establish a working group to report on how the proposals could be taken forward. Both the Department of Health and Ministry of Justice refused requests from various stakeholders, including AvMA, that the terms of reference should be broadened to include consideration of the actual root causes of high legal costs in clinical negligence and how they could be avoided without harming access to justice or patient safety.
The CJC published their report in October 2019. AvMA took part in the working party but found the process to be shambolic. The chair of the working group even refused to include AvMA’s full position statement in the appendices to the report.
At the time of writing (January 2021) neither the Department of Health and Social Care nor the Ministry of Justice have come forward with new proposals, but we understand that they still intend to do so. In fact, some civil servants have been setting the scene by claiming “a balance needs to be struck” between access to justice for harmed patients and the cost to the NHS.
In other words, the very people who have been harmed due to failures in patient safety in the NHS may be made to lose out because Government is not prepared to make sufficient investment in patient safety or resource the NHS to be able to honour its current legal obligations to compensate the people it harms fairly.
We have been warned to expect not just proposals for ‘fixed costs’ but potentially even more egregious proposals for ‘legal reforms’ which would severely harm access to justice for injured patients.