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Posted 10 December 2018
by Endurance Arthur

Has the demise of Legal Aid put justice out of reach for ordinary people?



Medical negligence (or clinical negligence as it’s known) can be utterly devastating, not just for the victim, but for the family too. At a time when you should be able to put your trust in the doctors and medical experts taking care of your loved ones, you’re facing the consequences of a life-changing event that should never have happened in the first place.
An additional issue is that since the changes to the Legal Aid system back in 2012, if you do want to engage a solicitor to bring a claim for medical negligence then (apart form a very limited class of cases set out below) you’re going to have to pay for it (at least in England, Northern Ireland and Wales). And that has put general claims out of reach for many people.

Holding the medical profession to account costs money. Medical negligence cases are, by their very nature, incredibly complex. To be able to bring a case a patient (or their family) has to prove that not only did the actions of the medical professional result in harm or injury to the patient, but they acted in a way that is below the expected standard for a professional in their position. To qualify for any kind of medical or clinical negligence claim, both parts of that equation have to be proven.

The Legal Aid and Sentencing and Punishment of Offenders Act 2012 removed the ability for many people to request Legal Aid for medical negligence claims. There are a few exceptions to this rule, but they’re very specific and primarily designed to help the families of children who have been injured during childbirth or pregnancy. Claims for neurological injury where children are severely disabled are still eligible for Legal Aid, but must meet the following criteria

  1. that the clinical negligence occurred when the claimant was in womb or during or after his or her birth up to a maximum of 8 weeks from the claimant’s birth; and
  2. the legal services are provided to the injured child or in the case of a child who has died then the services are provided to the child’s personal representative

As harsh as it may seem, there is no provision for Legal Aid for any other type of medical negligence claim. To illustrate how harsh this is, where an infant suffers a severe injury in the womb, in the course of birth or within 8 weeks of birth but the injury is not classed as a neurological injury, they will not get the benefit of legal aid.

No win, no fee
However, some solicitors are willing to undertake these complex and lengthy cases on a ‘no win no fee’ basis. This means that the claimant will only pay legal costs if they win the case. This seems like a lifesaver for victims of medical negligence cases, but again the number of solicitors willing to do this is small, and for long, drawn-out cases where the fees outweigh the final award, there could be no actual monetary value in pursuing a case in the first place.

It’s also worth noting that unlike the previous system, which required solicitors taking on medical negligence cases to have experience in dealing with such claims, now there is no mandatory requirement for your legal representative to have any type of experience in medical negligence work beyond the usual qualifications to practice law. So, if a claimant needs someone to take on a clinical negligence case they’re going to need to ‘shop around’ to find the best, most qualified and most experienced legal representation that’s willing to take on the case on a no-win-no-fee basis.

So that’s it, then?
Not quite. There are other options available, such as alternative dispute resolution, where a constructive solution can be reached without having to go to court. If there’s a clear case of negligence, then it’s likely that the health authority representing the medical professional will want to come to an amicable agreement with the patient and their family without the need for further legal action.
There are ways that those who have suffered injury or life-changing disability due to medical negligence can still access the legal system, so while the removal of Legal Aid for all but a very limited class of birth injury cases has had an impact, there are still routes to justice and financial compensation for those who need it.

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About the author

Endurance Arthur

Partner and Solicitor

Partner and solicitor in the medical negligence department and a member of the Law Society's Clinical Negligence Panel