Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Eaton Excerpts

Monday 16th January 2012 Lords Chamber

[Lord Goodhart]

My Lords, the speech of the noble and learned Lord, Lord Lloyd, at the beginning of the debate was both thorough and persuasive. There is nothing that I wish—or would be able—to add to the basis of his arguments. It is widely believed, and I am one of the believers, that post-accident insurance premiums have been an unsatisfactory element of legal aid in the past. It is therefore very undesirable that that should be continued specifically through Clause 45. The noble and learned Lord, Lord Lloyd, made it clear that Amendment 25 is highly preferable to the Government’s Clause 45. I hope, therefore, that the Government will see fit to accept that conclusion.

[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.