Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Eaton and Lord Clinton-Davis

Wednesday 7th March 2012 Lords Chamber

[Baroness Eaton]

My Lords I ask noble Lords to support Amendment 31, which stands in my name and in the names of my noble friends Lord Newton and Lord Cormack and the noble Lord, Lord Crisp.

Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.

I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering—a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.

The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb’s palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is 73 days old, he or she will be ineligible for medical negligence. However, if he or she suffers neurological damage two days earlier at 71 days, they can be granted legal aid. This seems a rather arbitrary and upsetting situation. I ask noble Lords to try to imagine how they would explain to their friends, family and neighbours why a baby who suffered neurological injury at birth could have legal aid but a baby blinded at birth, say by a forceps delivery, could not. Last year, £4.6 million was spent on legal aid for children who were victims of clinical negligence. The majority—estimated to be around £3 million—went on legal aid for babies who suffered neurological damage. As I say, this group has been conceded by the Government, so in reality we are arguing about a further £1.6 million or so to cover all remaining children.

I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.

I therefore ask noble Lords to support children like Sophie next year and the year after—children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.

[Lord Clinton-Davis]

I follow the noble Baroness, Lady Eaton, with temerity, as she has made a remarkable speech based on her personal knowledge. I thank her for what she has said.

I also speak with experience of clinical negligence cases. I practised as a solicitor for some 50 years and on many occasions during that time came across cases which involved clinical negligence. The Government appear to be suggesting that clinical negligence claims should proceed by way of joint expert reports. I think that that is pretty impractical. Medical and other experts often disagree, and to embark on a joint report is often totally impractical.

Legal aid should be available in all cases of clinical negligence where it appears to the Law Society, or whoever is arbitrating on the issue, to be practical and necessary. The ability to go to joint experts, where it is proved to be absolutely essential, should remain part of our legal process, and lawyers ought to be given the opportunity to do precisely that. It would save rather than expend more money if we were able to embark on such a policy, and that has been proved in practice time and time again. Why are we embarking now upon the totally impractical idea of a single expert?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Eaton and Lord Clinton-Davis

Monday 16th January 2012 Lords Chamber

[Baroness Eaton]

My Lords, I shall speak to my Amendment 36A, which deals with the position of children in medical negligence cases. I am not a lawyer and so I speak with some trepidation, having heard so many noble Lords who are experts in the field of legal matters.

The proposals to remove clinical negligence entirely from the scope of legal aid will have an enormous impact on the most serious cases of clinical negligence, especially where catastrophic injuries to children have occurred. A freedom of information request to the Ministry of Justice revealed that in 2009-10, 870 medical negligence cases in the name of children were supported by legal aid. Under the proposals in this Bill, 640 of those cases would no longer be supported by legal aid. Whenever I have raised this as an issue, I have been told—as have many Members—that the Government’s view is that these matters can be dealt with through conditional fee arrangements. We have heard from my noble friends Lord Faulks and Lord Carlile, the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Lloyd of Berwick, about the complications and why this is likely not to provide a satisfactory response.

Cases that are brought for children are often very long—sometimes complicated matters can last six or seven years—and cases that are not quite so complicated can still last for 34 months and longer. This is a terrible situation for families and parents to consider and contend with. Of the £17 million medical negligence cases funded by legal aid, less than a quarter are children’s cases. I understand that the majority of these involve perinatal injuries. These are particularly difficult cases and success is very uncertain.

When we are talking about the technicalities of legal aid and all that is involved in it, we should remember that clinical negligence cases affect not only the child in question but the parents and the whole family. Having a child myself who was wrongly diagnosed with a psychosomatic illness, which was in fact a very virulent form of bone and tissue cancer, I understand something of the trauma felt by such families. We did not proceed to litigation as the stress of doing so was, we felt, too great for us to cope with. We were an emotionally strong family in the fortunate position of being both strong for each other and able to afford the additional costs that occur to families in such situations. Others are not always so lucky. For families with a number of other children needing parental attention, the difficulty for parents to retain their employment can be a problem. I have seen many situations where the stress on families of looking after such children is so high that it has brought about a breakdown between parents.

The process of litigation with the support of legal aid is traumatic enough, but for a child to be denied that right must add hugely to the burden on the child and the family. I do not believe generally that the state should do things for people that they can do for themselves. I do believe, however, that a civilised society should provide a safety net for the most vulnerable.

I also do not believe in wasting public money or spending it unwisely. As we have heard today, independent research on behalf of the Law Society has found that the knock-on effect of the proposals in this Bill for legal aid in clinical negligence cases will cost almost three times the Ministry of Justice-predicted savings. I hope the Minister will be able to reassure your Lordships that this issue will be reconsidered and that the Ministry of Justice will produce a financial impact assessment so that decisions will be based on sound information.

[Lord Clinton-Davis]

The noble Baroness has spoken from personal experience of this issue and I hope that the Minister will take into account everything she has said.

Representations on this issue have come from many sources: the Law Society, firms of solicitors practising in this area, and the National Health Service Litigation Authority. I have received—as have many noble Lords, no doubt—a letter from a firm of solicitors called Withy King, which raises two particular issues. It asks:

“What is being done to address the increase in medical negligence in the NHS and what steps are being taken to minimise the risks and ensure patient safety?”.

The Minister should address this issue. It also asks:

“What is being done to ensure that the NHSLA handles litigation appropriately, settles claims quickly, makes payments when they are due and is generally fit for purpose?”.

Again, it is incumbent upon the Minister to address this issue.

I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for being absent for part of his speech. He may have addressed these issues himself—I do not know. I had to make an urgent phone call so I apologise. There is no doubt that the issues raised by Withy King are complex, but they are essential. Therefore, I hope that the Minister will focus his attention on the points it has raised, which arise out of professional experience, and that is most important.