Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Phillips of Sudbury Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Lord Phillips of Sudbury]

101A: After Clause 11, insert the following new Clause—
“Report reviewing claims for clinical negligence
(1) In discharging his or her functions under section 1(4) above, the Lord Chancellor shall have regard to the provisions of this section.
(2) The Lord Chancellor may appoint an independent person to review claims for clinical negligence and means of improving the modes, procedures, financing and outcomes relating to the same as he or she shall specify.
(3) Such a review may in particular address the accessibility, cost, effectiveness, openness, fairness, proportionality and speediness of such claims.
(4) After the reviewer must compile a report of his or her conclusions.
(5) As part of those conclusions the reviewer may propose such scheme or schemes (voluntary or otherwise) as he or she shall see fit.
(6) In this section “claims” shall mean claims and complaints made by patients receiving services provided or commissioned in England in respect of a liability in tort or contract owed in respect of personal injury or loss arising in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or in the care or treatment of any patient of an NHS body, or of a primary care or independent provider.
(7) The Lord Chancellor must lay before Parliament a copy of a report compiled under subsection (4).”

[Lord Phillips of Sudbury]

My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.

The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts’ reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person’s life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called “after the event” insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose that that is why one sees the sort of extraordinary cases of which I gave an example in Committee, given to me by the Welsh NHS legal department, where the award of damages was £4,500. The cost of the insurance, of the medical reports and of the lawyers came, believe it or not, to £98,000. That may not be typical, but this is an area of notorious expense, complexity and long-windedness.

The noble Lord, Lord Faulks, who is an expert practitioner in this field, dropped me a note earlier in the day in which he said:

“Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence … When legal aid was removed from personal injuries generally”—

that was, I think, 10 or more years ago; it might even have been in the Access to Justice Act 1999—

“it remained for clinical negligence—in recognition of its especial challenges”.

That is absolutely the point.

I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power—we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.

I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth—there are 270 pages of primary legislation with probably as much again to come in secondary legislation—we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.

This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.

That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.

[Lord Bach]

My Lords, we are grateful that the noble Lord, Lord Phillips of Sudbury, and his co-signatories have taken note of what my noble friend said last time. We support the amendment.

--- Later in debate ---

The amendment could lead to a burden or an expectation that we are unable to meet, and I therefore urge my noble friend to withdraw it.

[Lord Phillips of Sudbury]

My Lords, to say that I am disappointed in that response is, I am afraid, an inadequate estimate. The whole point of amending the resolution from last time was to make this discretionary. For the Government to say that they do not even want to be under an expectation of having such a wide review seems wayward. I also find it wayward that the amendment is rejected on grounds of cost. It is to save massive waste in this area that this amendment is put forward. I will withdraw the amendment, as there are only a dozen of us here, but I do so with disappointment.

Amendment 101A withdrawn.