Making the system work for patients

The Legal Aid Board needs independent advice on medical negligence claims, argues Anthony Barton
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Most medical and drug claims are legally aided. Legal aid, according to the Legal Aid Board, is a "system of government funding for those who cannot afford to pay for legal representation". But while anyone can be a victim of medical negligence, most people will not receive legal aid nor, therefore, access to justice.

In its Green Paper Legal Aid - Targeting Need, the Lord Chancellor's Department admits that legal aid neither encourages nor delivers value for money. The system, underwritten by the taxpayer, lacks independence and accountability. Instead, it provides perverse incentives that may reward lawyers for incompetence, inefficiency and self-interest. The success rate for medical liability claims is only 12 per cent, according to the board, and is negligible for drug claims.

Tough financial criteria must be satisfied before legal aid can be granted. The claim must also satisfy the "reasonableness" test. The law provides that "a person shall not be granted representation ... unless he satisfies the board that he has reasonable grounds". Parliament has created a presumption against the grant of legal aid. It has imposed a duty on the board not to grant aid unless it is satisfied there are reasonable grounds.

The board usually relies on advice from the applicant's lawyers in deciding whether to fund a claim. It does not obtain its own independent medical reports, preferring to invest vast sums of public money based on the advice of those with a pecuniary interest in advancing the case.Lawyers appear to be judge and jury in the cause of their own legal aid costs.

Unsuccessful legally aided plaintiffs are generally protected from having to pay the successful defendant's legal costs. The risks are thus weighted in favour of the plaintiff, who has nothing to lose against a defendant - who has nothing to gain but may incur irrecoverable expense.

The Lord Chancellor's Green Paper admits legal aid "allows assisted parties to pursue cases which turn out to be unmeritorious, often at the expense of unassisted opponents". The Law Society president responded that "the Legal Aid Board issues Legal Aid Certificates too readily. ... Whose fault is that, if not the Legal Aid Board's? Are the lawyers to blame?"

The Bar Council acknowledges that legal aid was "supporting far too many cases that lack sufficient merit ... too high a proportion of cases fail". Where cases were settled, it often reflected "legal aid blackmail" when it was commercially expedient to settle irrespective of the merits.

The British Medical Association observed that "legal aid certifying committees tend to view too many applications with a lack of rigour ... those conducting litigation are perhaps too involved as advocates for their clients to take an appropriately detached view of the weaknesses in the case and the probable strengths in the defendant's case".

The Legal Aid Board itself has said: "There is no incentive on the solicitor to act as a responsible filter for dubious cases, as there is no effective sanction available for shoddy work or bad cases being taken."

Recent years have seen an explosion in the volume of medical and drug litigation, helped, no doubt, by solicitors' advertisements aimed at victims. The annual cost of medical litigation to the NHS is about pounds 150m and rising fast; the NHS has an estimated claims liability of pounds 1bn.

All patients injured as a result of negligent medical treatment ought to be compensated, irrespective of means. There must be access to justice. Doctors must be accountable.

Medical treatment, however, is inherently dangerous and concepts of safety are relative rather than absolute: benefit is attended by risk. There is often an underlying disease process. Yet it seems that any clinical outcome that is sub-optimal can justify the grant of legal aid: lawyers are encouraged to speculate with public money in the name of justice to such little benefit for patients and with apparently scant regard for the strength of the case or the quality of representation.

It is patients, of course, who potentially suffer as scarce funds are diverted from medical care to lawyers' fees. Legally aided litigation fails to ensure compensation and medical accountability in appropriate cases. Instead, it impoverishes the health service. The Court of Appeal has observed that "the NHS has better things to spend its money on than lawyers' fees".

If medical negligence litigation is to be reformed, then its funding will need to be based on independent advice. The system must work for the patients and not just the lawyers.

The writer is a medical practitioner and solicitor.