26 March 2012
Following concessions last month by the Ministry of Justice to the Legal Aid Sentencing and Punishment of Offenders Bill to retain legal aid “in obstetric cases
which result in severe disability” the Government has now seen a number of its key proposals defeated as they pass through the reporting stage in the House of Lords.
Under the Government’s initial proposals the Legal Aid Sentencing and Punishment of Offenders Bill would have removed clinical negligence
in its entirety from the scope of legal aid and would have left claimants to be represented by way of Conditional Fee Agreements (“no win, no fee”) with the need to take out insurance to cover the cost of experts’ reports.
Having already conceded that “clinical negligence claims
in obstetrics cases which result in severe disability must receive legal aid" before the Legal Aid Sentencing and Punishment of Offenders Bill reached the reporting stages of the House of Lords, the Government has since suffered defeats over its proposals for restricting access to legal aid, including the funding of medical expert reports for all types of clinical negligence
Whilst the tabled amendments will see legal aid continue in clinical negligence
cases where negligence occurs in the period beginning with the mother's pregnancy and continuing until eight weeks after birth and, if not overturned by the Government, the cost of medical expert reports will continue to be funded by legal aid, it still means that those who suffer negligence after this period or in different circumstances, will not be eligible for legal aid. They will have to rely on other forms of funding, mainly no win, no fee agreements, which are also under attack from the Government.
Baroness Grey-Thompson who saw a separate amendment, to overturn the plan to stop legal aid for all clinical negligence cases narrowly defeated by just seven votes said “It is arbitrary and unfair to distinguish between children injured as a result of injury at birth
and other children with severe injuries due to clinical negligence, or indeed adults whose lives have been ruined. Everyone deserves access to justice. The case for retaining legal aid is overpowering and I am hopeful the amendment in my name will prevail.”
Leigh Day & Co clinical negligence
lawyers are clear that the Legal Aid Sentencing and Punishment of Offenders Bill will restrict access to justice to those people who are injured through no fault of their own as a result of negligent medical treatment. Whilst the amendment by Lord Lloyd of Berwick, to continue to fund medical reports in clinical negligence cases is welcomed, the amount that experts can now charge in clinical negligence cases has already been restricted by the Legal Services Commission meaning that the pool of experts claimants can approach is, in reality, restricted to those experts who are willing to accept a reduced fee.
The reporting stage of the Legal Aid Sentencing and Punishment of Offenders Bill has now concluded (20 March 2012) and the next stage is the third reading, which is the final chance for the Lords to debate and change the contents of the Bill.
Information was correct at time of publishing. See terms and conditions for further details.