MDDUS is urging the government to reintroduce legal aid for more categories of clinical negligence claims as a central part of wider reform to maintain access to justice for the most vulnerable claimants whilst reducing the burden on the NHS and court system of unjustified claims.
Responding to the government’s post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) part 2, MDDUS Director of Advisory and Legal Services Emma Parfitt said: "There have been some welcome changes in the field of clinical negligence following the reforms under LASPO part 2, principally a reduction in the size of claimants’ bills of costs as a result of the abolition of the recovery of success fees and ATE premiums for legal costs.
"But these are outweighed by negative features. In particular, the introduction of qualified one-way costs shifting (QOCS) has led to a significant increase in the number of claims issued against our members without any attempt at early resolution as a result of the lack of any disincentive to issuing proceedings.
"Quite apart from the obvious detriment to claimants who would benefit from having their claims resolved early and without recourse to the courts, this trend has also resulted in increased costs for defendants, particularly the NHS, and has placed a greater burden on the court system."
Ms Parfitt said that reintroducing legal aid more widely in clinical negligence claims would address any prevailing concerns about access to justice much more effectively than QOCS. In addition, it would ensure:
- compensation awards to claimants without any need to pay additional liabilities out of the damages
- greater scrutiny of a claimant’s legal costs as and when incurred
- much more rigorous and regular scrutiny of the merits of a claim at all stages
- the opportunity for defendants to make representations to an objective third party where cases lack merit.
Ms Parfitt added that by comparison, the current system manages to be unfair to clinicians and the NHS, without providing the most vulnerable claimants with any real benefit.
Commenting further on the MDDUS consultation response, she added: "MDDUS also remains concerned that the recoverable ATE premiums for expert evidence are persistently disproportionate in comparison both to the amount actually spent on experts' fees and to the level of damages recovered.
"We are hopeful that the Court of Appeal will presently address these issues but we would urge authoritative guidance or even legislation if necessary on the proportionality test to ensure consistency and fairness moving forward."