Javid: Plea from nine organisations

Nine charities and patients organisations have urged health secretary Sajid Javid to rethink plans to impose fixed costs on clinical negligence claims worth up to £25,000.

The groups – including Action against Medical Accidents, the Patients Association, Mencap and Mind – said they saw the consultation proposals published earlier this year as a threat to both access to justice and patient safety.

“The result would be that some of the most vulnerable people harmed by clinical negligence would not be able to achieve justice, because they would not be able to find solicitors to help them challenge denials and win their claim.

“Even if they did, they would lose a significant amount of their damages in legal costs that would be left to them to pay instead of the bodies responsible for the negligent harm. In effect, the very people who the NHS has harmed would be being asked to sacrifice their access to justice in order to save the NHS money.”

The letter argued too that the NHS would also be less safe because it could not be held to account “and therefore would not learn lessons”.

It criticised the consultation’s failure even to ask questions about the effect on access to justice and patient safety.

“We urge you to reconsider these proposals. At the minimum, all fatal cases and claims by people lacking capacity should be excluded from a fixed costs regime; poor defendant behaviour must be curtailed; any cap on legal costs must be at a level to realistically allow for involvement of accredited specialist solicitors.

“There should also be a demonstrable system for learning patient safety lessons from cases.”

Any new system should be piloted and evaluated first, the groups added.

The other signatories were Action on Pre-Eclampsia, the Birth Trauma Association, Erb’s Palsey Group, Group B Strep Support, and the Harmed Patients Alliance.

Claimant lawyers too made clear their opposition to the plans. The Association of Personal Injury Lawyers (APIL) said subjecting vulnerable injured patients, who lacked the capacity to bring their own claims, to the new process was “unfair and inconsistent”.

Executive committee member Suzanne Trask explained: “Protected parties are excluded from other low-value schemes, such as for road traffic collisions and workplace injuries, because of the complexity of their cases…

“And cases where patients have died at the hands of the NHS certainly need more time and greater sensitivity than is afforded by this scheme”.

The government adopted the level of fixed costs put forward by defendant representatives, which Ms Trask dubbed “a breathtaking display of self-interest”. Efforts to tackle the fundamental problem of the NHS’s negligence was “conspicuously absent from this consultation”, she added.

CILEX argued in its response that the fee cap “penalises victims” given that even the simplest claim could require significant resourcing and evidence gathering – cases that were uneconomic for law firms may simply not be investigated.

It recommended adding to the list of exclusions from fixed costs all claims where liability was denied, all fatal accident claims and all claims with more than one liability expert.

CILEX chair Professor Chris Bones said: “Faster resolution for claimants is something we all wish to see but this cannot come at the expense of the ability to make that claim in the first place.”

The Association of Costs Lawyers, meanwhile, said the proposed new process for low-value claims should be introduced on its own without fixed costs “to enable a full and proper analysis to take place as to efficacy of this proposal and to also consider the potential costs savings”.

A survey of members found most believed costs would fall through implementing the new process.

Should the government decide to go ahead anyway, the ACL questioned the level of costs, noting that the consultation failed to provide “any form of reasoning” behind the decision to opt for those recommended by defendant representatives.

ACL council member Kris Kilsby said: “Fixed recoverable costs are a very blunt instrument that may work in areas where the course of claims is relatively predictable – such as road traffic accidents – but not in a much more complex area like clinical negligence.

“Our members are experienced and knowledgeable about costs and are able to greatly assist the court to ensure that costs in such cases are kept to reasonable and proportionate amounts.

“Introducing fixed costs will remove this level of check and balance and could lead to unjust results in respect of costs recovery which could ultimately lead to an impact on access to justice.”

Marketing collective First4Lawyers said in its response that the changes ran the risk of discouraging specialist firms and driving claims  to those without the skills and capital resources to conduct them properly.

Managing director Qamar Anwar said this would create in effect “a two-tier system for the consumer – a better level of service for higher-value claims and a lower level for those falling into the fixed recoverable costs regime”.