Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Monday 16th January 2012 Lords Chamber

If ever there was a case in which the pressure of the potential litigation should serve the public good, it might be thought to be in these cases. As we have already heard, a reasonably high percentage of the population suffer to some degree from negligence and it would be wrong in that context to dismantle the machinery which affords them access to justice. I would hope—and others have also expressed this hope—that the noble and learned Lord, in replying to the debate, would acknowledge that this is a matter in which the Government need to listen to your Lordships’ House, to make more than a gesture or partial concession to a limited group of potential claimants, and to recognise that there ought to be a complete restoration, or retention, of legal aid for clinical negligence. It is not particularly costly and would be broadly welcomed across both the legal and medical professions and, more importantly, by the general public.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I join the noble Lord, Lord Beecham, in congratulating those who have taken part in what has been a very serious debate. The Committee has benefited from experience: the experience of those who have practised law in this sphere; the personal experience of my noble friend Lady Eaton and the noble Lord, Lord Howarth of Newport; and the experience of those who had formerly been Members in another place—my noble friend Lord Carlile of Berriew and the noble Lord, Lord Wigley, have had to deal with issues such as this in the course of their constituency work.

A number of your Lordships asked that Ministers would listen. In a debate of this profundity it is only appropriate that we should reflect on the many contributions that have been made, contributions which carry forward a number of the concerns that were expressed at Second Reading. As well as compensation, clinical negligence also raises the point which was reflected on by the noble Lord, Lord Clinton-Davis: the importance of standards for those who provide medical treatment. Related to that, the Department of Health is currently consulting on our duty of candour proposals, with the intention of implementing these through contractual changes. These proposals will make sure that providers of NHS care are more open with patients about harmful adverse effects. We would expect the duty of candour to apply to NHS patients treated, typically, in hospitals, where at least moderate harm results. The proposals specify that,

“There must be appropriate investigation undertaken to establish the facts of an incident”,

and that,

“New information that emerges during an investigation … must be shared with patients and their carers/families within 5 working days of its inclusion in any incident report”.

We would expect that claimants’ solicitors could use a duty of candour when investigating potential claims. This might act as a lever to identify when NHS providers are non-compliant. Providers could also use these requests as an indicator for a potential claim being made, prompting early action to resolve the matter before claims are made. Overall, we believe this should facilitate access to justice and help speed up settlements. There is a general acceptance that the way in which the NHS handles claims has improved significantly over recent years, but, as I have indicated, it is important that we continue to ensure that we have the highest standards and the best practice in dealing with incidents such as these when they occur.

The amendments which have been spoken to have as their common theme the extension, in one way or another, of legal aid in cases involving clinical negligence. We recognise that many of these cases raise serious issues, especially where damages are required to meet future care needs. My noble friend Lord Carlile talked about particular parents who are overwhelmed not only by their current care responsibilities but also by the knowledge that they face—well into the future in many cases—continuing care responsibilities to their children. These are serious issues, which can lead to very substantial claims for compensation. We also recognise that some litigants will be vulnerable because of disabilities resulting from negligent treatment. My noble friend Lord Faulks acknowledged that the Government have recognised the seriousness of these particular issues, because clinical negligence claims are not being treated like personal injury claims, or indeed like other torts.

My noble friend Lord Faulks also indicated that the Government had sought to engage constructively to address these issues, although he expressed very serious concerns and reservations about the different proposals that have been brought forward to try to address them. I will try to deal with these in the course of my reply. He indicated, for example, some scepticism as to whether the conditional fee agreement could replace legal aid. Figures from the NHS Litigation Authority show that in 2010-11 approximately 82 per cent of clinical negligence cases where the funding method was known were funded by means other than legal aid, such as conditional fee agreements, “before the event” insurance, legal expenses insurance and private funding. We considered the fact that there are viable alternatives to legal aid in this area when coming to the view that legal aid would not be justified in these cases and that—as has been a frequent refrain in these debates—limited funding should be targeted in other areas.

--- Later in debate ---

[Lord Phillips of Sudbury]

Does my noble friend not understand that a poor litigant simply cannot afford any ATE premium in order to get to the point of knowing whether there is a claim to be made?

[Lord Wallace of Tankerness]

My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.

[Lord Phillips of Sudbury]

I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.

[Lord Wallace of Tankerness]

My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.

[Lord Thomas of Gresford]

The problem is that you cannot get a conditional fee agreement unless you have a case, and you cannot get insurance unless you can show that there is a case. In clinical negligence, you do not have a case unless you have the medical reports. That is the problem. The Government’s solution, as put forward in Clause 45, does not solve the problem at all.

[Lord Wallace of Tankerness]

My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.

We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing—trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.

My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted—although he queried whether it should have been done earlier, rather than during the passage of legislation—a working party has been set up to consider the recoverability of ATE and to ensure that premiums for expert reports reflect the risks involved. ATE insurance brokers have been asked to contribute to this working group. It is a concern to which we are alert and one that we seek to address.

Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant’s costs. We have therefore protected the claimant’s interests to ensure that they are not denied access to justice for fear of having to pay the defendant’s costs if they were to lose.

One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.

My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million—

[Lord Faulks]

I am very grateful to the Minister for giving way. Can he help the House as to whether it is the Government’s position that a cohort of cases such as brain damage cases, which are exceptional to the family but do not raise exceptional points of law, would nevertheless be regarded, if there was no legal representation, as a violation of Article 6?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity—these are not necessarily cumulative—in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take—

[Lord Carlile of Berriew]

I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?

[Lord Wallace of Tankerness]

We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.

[Lord Thomas of Gresford]

My noble and learned friend referred to Clause 9 and to exceptional cases. He will be aware that a specific category of special exceptional cases is delineated in that clause: namely,

“advocacy in proceedings at an inquest under the Coroners Act 1988”,

where there is a “wider public interest determination”. Are the Government prepared to consider whether in this very sensitive type of case there could be a subsection inserted into Clause 9 which deals with the very difficult issue of clinical negligence instead of leaving it under the broad wording of subsection (2)?

[Lord Wallace of Tankerness]

I thought that I was going to be diverted down the tracks of coroners’ inquests. However, I take the point which my noble friend makes. We believe that the relevant provision already covers the matter. He draws a comparison between measures within the same clause. We will have an opportunity to return to that matter when we come to Clause 9. It is only right that I should consider the point, which I am sure was made with helpful intent.

The question of relative costs has been raised and one or two noble Lords have pointed to the reservations made by the NHSLA. It is fair to point out that as regards the King’s College research which has been referred to, the Department of Health has confirmed that in the context of the reforms as a whole, which include all the Jackson reforms, the costs to the NHS are expected to reduce substantially and not to increase. It is important to look at the matter in the context of the overall impact of our reforms: namely, that the costs will decrease.

The noble and learned Lord, Lord Lloyd, has sought to contrast what he believes will be the cost of his amendment with the costs he believes will be incurred under Clause 45(2). He will be able to reply shortly. He quoted my honourable friend the Minister, Mr Djanogly. I think that the noble and learned Lord recognised that Clause 45(2) is a clear attempt to address the concerns which are shared not just by him and me but by the Committee as a whole. His view is that it would be more expensive to go down this route than to adopt his amendment. One of the differences between our proposal in Clause 45 and the use of legal aid for clinical negligence is that it would be restricted to those who are otherwise eligible for legal aid where the ATE power of recoverability will provide access to justice to everyone.

I think that the noble and learned Lord acknowledged my next point when he gave his figures. We do not readily recognise his figures. We feel that the costs of the ATE market as adjusted would not give rise to the costs which he indicated. I noted all his figures very carefully, but I probably was not quite keeping up with them. He said that he did not expect me to comment on the detail of his figures today but asked me to provide an answer. That is the least one can do, given the amount of work that the noble and learned Lord has clearly put into this. As I say, we do not readily recognise the case that he put forward. However, we must undoubtedly reflect on the issue. It would not necessarily make sense to embark on something which led to considerably greater cost when the overall object of the reforms is to reduce cost. I hope that with the assurance I gave at the beginning that we will reflect seriously on all the important issues that have been raised, the noble and learned Lord will withdraw the amendment.

[Lord Lloyd of Berwick]

My Lords, as was to be expected, the debate has gone far wider than the limited purpose of my amendment because this is the first opportunity that we have had to consider clinical negligence as a whole, and there are other amendments in this group.

So far as my amendment is concerned, everyone has accepted that expert reports are the key to the problem. The question then is: what is the best way to fund expert reports? I am especially grateful in that connection for the support of the noble Lord, Lord Faulks, given all his experience in this field. My impression was that his view is the same as mine and, indeed, that of Sir Rupert Jackson, whereby Clause 45 is not the way ahead. That is the purpose of my amendment. I am also especially grateful to the noble Baroness, Lady Mallalieu, for saying that the amendment is only the minimum required. On that I entirely agree. If clinical negligence generally is to be covered, my amendment will fall away, but it is the essential safeguard if there is not to be wider coverage by legal aid of clinical negligence cases.

Of course I will not press the amendment because I cannot do so until I know the Government’s answer to the figures that I have put forward. However, if those figures turn out to be correct, as I believe they will be, then Clause 45 is not the way ahead and it is far better from the point of view of saving money for the taxpayer to adopt the limited degree of legal aid required for expert reports. I look forward to the answer to the figures I put forward and, in the mean time, beg leave to withdraw the amendment.