Legal aid to be kept for medical negligence cases

The government last week retreated from plans to withdraw legal aid from all money and damages claims—including medical negligence cases—from this summer. Proposals to abolish aid for other types of personal injury claims and a range of other cases will go ahead as planned, but medical negligence cases will continue to be financed by legal aid for the next two or three years.

For cases in which aid is withdrawn, lawyers are expected to fill the gap with no win, no fee deals—so called conditional fee agreements. From June or July solicitors and barristers will be allowed to offer such deals in any type of case, apart from crime or family cases. Conditional fee agreements have been available for two years for personal injury claims, and more than 30000 litigants have used them so far. Lawyers charge a success fee of up to 100% of their normal fees, subject to a voluntary cap of 25% of the client's damages. Insurance covers the risk of losing and having to pay the winner's costs, making the enterprise free of risk for the client.

The premium is small for straightforward accident cases, which have a high rate of success. But ministers accept that medical negligence is in a different category. Upfront costs of investigation are much higher, and so are insurance premiums, since outcomes are much less predictable. Legal aid will continue to be available for these cases to allow the insurance industry and law firms to devise ways of dealing with them under conditional fee agreements. But in the meantime, aid will be restricted to a limited number of specialist law firms.

Medical negligence cases brought on legal aid have a low success rate, with only 17% resulting in a payment of £50 or more. In part this reflects the complexity of the field and the high number of cases (compared with other types of personal injury) in which preliminary investigation shows that there is no case and the legal aid certificate is discharged. But the government believes that part of the reason for the high failure rate is that too many inexperienced lawyers are taking cases.

In future, aid is likely to be restricted to members of a specialist panel, such as those run by the Law Society and Action for Victims of Medical Accidents. One proposal in the consultation paper that is certain to meet strong resistance from insurers, medical defence bodies, and the NHS is the suggestion that the lawyer's success fee could become part of the costs that a successful plaintiff can recover from the losing defendant. Since the success fee rises with the risk and medical negligence is the most risky type of personal injury litigation, lawyers are likely to demand a 100% success rate—double their normal costs—in most cases, compared with an average of 43% for conditional fee agreements for personal injury cases so far.

The BMA welcomed the restriction of legal aid to expert lawyers but said that this would not reduce the costs to the NHS. Dr Mac Armstrong, the BMA's secretary, said: “We need a radical rethink which offers justice to patients who have suffered damage, but which protects the NHS from the huge cost of defending claims which do not succeed.”

Lord Irvine believes too many inexperienced lawyers are taking cases

TONY HARRIS/PA NEWS