NHS lawyers warned the government before it published its bill on legal aid reform that scrapping legal aid for clinical negligence claims would ‘massively’ escalate NHS legal costs, and leave some seriously injured people unable to bring cases.
In its response to the government’s cost-cutting consultation on reform, the NHS Litigation Authority said it had ‘serious concerns’ over the proposals to withdraw legal aid for clinical negligence cases.
The body, which is responsible for handling claims against the NHS, said reducing legal aid would lead claimants to make greater use of conditional fee agreements (CFAs), which would increase the legal costs the NHSLA would have to pay when it lost a case.
The litigation authority noted that there had been a rise in claims brought under conditional fee agreements (CFAs) in recent years, but questioned whether they would be available to fund many of the more serious claims that are currently brought using legal aid, particularly those involving brain-damaged children and adults.
It added that CFAs increased the conflict of interest between a solicitor and their client, as the solicitor may focus on getting an offer of damages at any level to secure their costs, while the client would be entitled to a fair recompense.
‘Hence, there is a danger that some very seriously injured and vulnerable claimants may be prejudiced by the desire of their lawyers to recover their costs,’ it said.
The NHSLA said the government’s consultation accepted that legal aid had contributed to containing NHS legal costs.
It warned that the government’s current proposals would ‘undoubtedly cause NHS legal costs to escalate massively’.
It said the proposed partial implementation of Lord Jackson’s recommendations, without the removal of recoverability of uplifts and after-the-event insurance premiums, would result in an overall increase in public expenditure.
‘Overall we are strongly in favour of retaining legal aid for clinical negligence cases using the current eligibility criteria,’ it said.
An MoJ spokesman said: ‘We have one of the most expensive legal aid systems in the world and it's in urgent need of reform.’
He said the new exceptional funding scheme will continue to provide legal aid for serious and complex clinical negligence cases where failure to do so would be likely to result in a breach of the individual's rights to legal aid under the European Convention on Human Rights.
He added that people can use CFAs as an alternative to legal aid funding.
He said: ‘Claimants who lose their case will be protected from having to pay the defendant's legal costs.’
Shadow justice minister Andrew Slaughter MP said: ‘On almost every occasion that the government is asked to justify its cuts to legal assistance in clinical negligence cases, it points to the cost to the NHS.
‘Now we find the NHS’s own lawyers are saying it is immoral and economically misguided to prevent brain-damaged children and adults from getting justice.
‘This government just isn’t listening.’
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