Fixed costs will impact access to justice and lead to long term deterioration of healthcare in the UK

Proposals to enforce fixed costs in clinical negligence cases will deny those who have suffered life changing injuries access to redress and will prevent failings in our healthcare services from ever coming to light.

A consultation into proposals to cap legal fees in clinical negligence cases is expected in the autumn following a headline grabbing announcement by the Department of Health this summer.

In response to growing fears about the spiralling NHS budget and the cost of litigation to the NHS, the Government has taken the view that legal fees are excessive and that ‘unscrupulous’ lawyers are to blame.

Whilst capping fees might seem like a quick win for a government intent on cutting costs, the proposals demonstrate a complete lack of knowledge or understanding about how clinical negligence cases are run. Worse still, they fail to acknowledge the devastating impact the plans would have on the ability of those who have suffered life changing injuries or bereavements to gain redress or act to ensure action is taken to prevent future negligence.

The Government’s initial plan was to limit legal costs for claims below £100,000 (recently increased to £250,000) and ensure that lawyer’s fees reflect a percentage of the compensation received by a patient so that it is proportionate. They contest that there is no limit on fees at present and appear to work on the basis that all low value cases are, by their nature, less complex and therefore less expensive to run.

This isn’t the reality as those working in the field know only too well. The truth is that costs have always been controlled by the courts and further tightened as a result of the Jackson reforms. Fees are tightly controlled, capped and limited. Costs have to be reasonable and proportionate before they are paid out by insurers or the NHS and the court has the power to reduce any bill found to be excessive, a power that is used if solicitors’ costs need to be kept in check. The idea being perpetuated by the government that lawyers can charge whatever they want is simply wrong.

The premise that low value cases are less complex and therefore less expensive to run is also false. Take the example of a case involving a baby that has tragically died as a result of errors made by medical professionals overseeing the birth. Establishing the facts surrounding the death and whether there was negligence is time consuming and complex, requiring skilled medical and legal knowledge, as well as evidence from a range of experts. Any compensation paid to the parents would, however, be relatively small as a dead child does not have a claim for future provision as is the case with brain damage. The disparity between investigation costs in a fatal case compared with those of a brain damaged child are not always that far apart.

The danger of these proposals is that by bringing in fixed costs, lawyers will simply not be able to take on low value cases like this. Can it be right that in fatal cases families find they cannot gain legal representation? How will lessons be learned by healthcare providers if no one is able to push for answers? How will better practice be implemented? Will the judiciary be denied the opportunity to provide rulings in vital cases? Will those on low incomes be discriminated against because they have no loss of earnings associated with a claim meaning they fall below the £250,000? Inevitably many will be denied access to justice and those most affected being the vulnerable such as psychiatric patients, the elderly and disabled, whose cases can be the most complex and challenging. These are areas where lawyers and the judiciary successfully intervene to protect patient safety.

The proposals fail to analyse the drivers behind legal costs. The role of the NHS Litigation Authority and/or its lawyers in particular should not be underestimated. By failing to admit liability straight away when mistakes have clearly been made and to put in place meaningful rehabilitation speedily, they drive up costs on both sides. Rather than focusing on the imposition of fee caps, government should be looking at ways to foster a culture of transparency and accountability in the NHS in addition to promoting good practice and education within hospitals. This would do far more to contribute to reducing the costs of litigation and would be a positive development for the victims of medical negligence.

It is not just the erosion of justice that is of concern, it is also the long term impact on patient safety that should worry the Government and all of us. There is a great deal of evidence to suggest litigation can drive the development of better practice. The process can incentivise best practice, identify systemic failings, ensure that sanctions are taken against poor and negligent doctors, promote early diagnosis and lead to significant changes and improvements in healthcare.

There are many examples of this, including in one of our most recent cases concerning the death of a baby – Casey Garrett. Following the inquest into his death and the failings that it revealed, the coroner explained he would be visiting the chief executive of the hospital to ensure safe procedures were being adhered to. He will also be writing to the body responsible for training student midwives to consider whether Bedford Hospital is an appropriate place to train students in the light of the series of failings the identified. This is evidence the process is having a real impact in terms of improving patient safety, in addition to Casey’s parents feeling that their tragedy has made a difference in a wider sense.

At present there is limited detail in the proposals and we await a more in-depth explanation when the consultation opens in a few months’ time. At Hodge Jones and Allen we will not be advocating a compromise between the current system and fixed fees. What we have now works so we will be lobbying for an outright rejection of the proposals because there is just too much at stake for the public. There is no room for negotiation on this.

We hope that the consultation will give the opportunity to inform both the public and our politicians about how clinical negligence litigation operates and the dangers of creating an unworkable unfair system that will impact the most vulnerable in society, deny access to justice and ultimately lead to deterioration in the high quality health services we all rely upon.