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

05 Dec 2018

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 are facing the consequences of a life-changing event that should never have happened in the first place.

Since changes to the Legal Aid system in 2012, if you do want to instruct a solicitor to bring a claim for medical negligence then you are going to have to pay for it (at least in England, Northern Ireland and Wales). That has put bringing a medical negligence claim 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 standard of a reasonably competent clinician practising in that field To be successful in a medical or clinical negligence claim, both parts of that Legal test must be established with the benefit of independent expert evidence.

The Legal Aid and Sentencing and Punishment of Offenders Act 2012 (LASPO) resulted in many becoming ineligible for Legal Aid for medical negligence claims. There are a few exceptions to this rule, but they are very specific and primarily designed to help the families of children who have been injured during childbirth or pregnancy. Legal aid remains available to children who have suffered a neurological injury at, or shortly after, birth but they must meet one of the following criteria:

  • The negligence results in severe disability that will require extensive and lifelong care
  • The negligence occurred during pregnancy

Or:

  • The negligence occurred within 8 weeks of birth.

Since the introduction of LASPO, there is no provision for Legal Aid for any other type of medical negligence claim.

Clare Thompson

No win, no fee

However, some solicitors are willing to accept instructions in 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 allows access to justice for victims of medical negligence cases.

It is also worth noting that unlike under the legal aid system, which required solicitors taking on medical negligence cases to have experience in dealing with such claims, there is no longer a mandatory requirement for your legal representative to have any type of experience in medical negligence work beyond the usual qualifications to practise law.  A Claimant is best served by finding a recognised and qualified clinical negligence solicitor. Here, at Hay & Kilner, we have solicitors accredited by the Law Society and AVMA reflecting our years of experience in this complex, and often sensitive, area of law. Our Clinical Negligence team are recognised in Band 1 of Chambers and in Tier 1 of Legal 500, which are the highest categories in independently researched guides identifying the most outstanding law firms and lawyers

So that’s it, then?

There are ways that those who have suffered injury or life-changing disability due to medical negligence can still seek redress through the legal system. While the removal of Legal Aid for all but the most serious cases has impact access to justice, there are still routes to redress and financial compensation for those who need it.

If you would like expert advice on making a clinical negligence claim, please contact Clare Thompson, or call 0191 232 8345.