February 15, 2011

Will Parliament spot the real problem with legal aid cuts?

Valentine’s Day is usually a time for the romantics among us to indulge in candlelit meals for two and succumb to overpriced greetings cards. But this year it marks something much more sinister – the end of the consultation period for legal aid reforms.

There are some who argue that legal aid, which allows low income families access to legal advice and representation, should indeed be scrapped – particularly for those who use it to fund messy divorces, custody cases or personal disputes.

But the proposed plans to cut legal aid, at the same time as proposing changes to no win no fee arrangements, will affect every aspect of the law, with perhaps the biggest impact being felt by patients injured through clinical negligence – people who have died or been seriously injured as a result of misdiagnosis or incorrect medical or dental treatment carried out by the NHS or in private medical care.

Cutting legal aid for clinical negligence cases will affect the most vulnerable people in our society – severely disabled children, the bereaved and those who lack mental capacity. How can this be part of the coalition government’s stated plan to protect the most vulnerable from its cuts?

One of the problems the Government has is that it also funds the NHS and this represents a major conflict of interest. If you make it impossible for all but the wealthiest patients to sue the NHS by withdrawing public funding, the Government is, in effect, putting itself above the law. No one disputes the wonderful job our doctors and nurses do under very trying circumstances, but it is only right that when things go wrong they are held to account by the courts in the same way that teachers and other public servants, indeed any citizens, are.

No-one in this country – not even the Government – are above the law.

For example, one of our clients had to have both his legs amputated as a result of mistakes made by the Royal United Hospital in Bath. Only legal aid enabled him to hold the hospital trust to account and obtain compensation to pay for the specialist equipment he needs to give him some measure of mobility and independence. This is just one of many tragic cases which would never have seen justice without Government financial support.

Buried deep within the impact assessments attached to the green paper outlining the cuts – which are not stored online with the green paper itself – are the figures behind them.

Legal aid for clinical negligence claims is only paid if the case is lost. According to Government figures the success rate for publicly funded clinical negligence cases that proceed beyond the investigation stage has increased to 91 per cent and the average cost of unsuccessful cases has decreased by 69 per cent. It does indicate that there is no problem to solve in terms of clinical negligence cases, as specialist solicitors like ourselves, are getting better at only taking on those cases which have merit – perhaps the Government should take heed of the old saying: if it’s not broken don’t try and fix it.

The cost of legal aid for clinical negligence was £17m in 2008/2009, according to figures from the Legal Services Commission (the figures the government quotes).

If these figures are broken down then the net saving of scrapping legal aid for clinical negligence is just 0.01 per cent of the £150bn deficit. Surely, the costs of these proposed cuts of depriving some of the most vulnerable in our society from seeking the compensation they need to try and put their lives back on track and the harm to the fundamental democratic right of access to justice, cannot be worth the ‘benefit’ of saving just £17 million?

It would appear that the Government either does not understand the combined implications of the planned legal aid cuts at the same time as the proposed changes to conditional free agreements (CFAs or ‘no win, no fee’ claims) and access to justice, or it does not care. The Government could possibly cut legal aid or tamper with CFAs, but if access to justice is to prevail, it cannot do both.

Now is the time for every citizen, led by the legal profession, to stand up for legal aid funding to provide practical access to justice, on the firm basis that the Government needs this more than we need them. Without an effective justice system, they erode the very democracy which puts them into power and keeps them there.

As members of the legal profession, we need to lead the fight against these cuts and lay bare the truth behind the oft-quoted spin of ‘compensation culture’ and ‘self-serving lawyers’. We are simply the servants of our clients and the justice system, just as MPs and ministers are servants of the people.

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