The Facts Behind The Campaign:
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Fixed Recoverable Costs in Clinical Negligence - June 2024
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INTRODUCTION:
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Over the past decade a succession of Conservative administrations have proposed limiting the amount of legal costs which can be paid to the lawyers of patients who are victims of clinical negligence. The changes would introduce Fixed Recoverable Costs for legal expenses in cases where damages are estimated to be less than £25,000.
How claims are valued means the economically disadvantaged will be disproportionally affected. Claims that have the potential to fall under the regime could include the death of a day old baby, an elderly person with complex medical conditions or a person with cerebral palsy developing pressure sores; a collective of the most vulnerable in our society.
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These proposals have been subject to Government Consultation but never subject to proper Parliamentary scrutiny or debate. Indeed such issues were raised by the Commons Health and Social Care Select Committee, under its former Chairman Jeremy Hunt, the longest serving Secretary of State for Health. Government never even responded to the inquiry on NHS Litigation reform.
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THE DANGER:
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Without full Parliamentary scrutiny: under delegated powers the Civil Justice Procedure Rules Committee, working with officials from the DHSC have progressed with preparation of the introduction of such a scheme with the intention of it being introduced by Statutory Instrument via the Lord Chancellor and Ministry of Justice.
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Despite the General Election of July 2024 this work continues, despite opposition from many quarters, without the input of elected politicians, all in the name of efficiency and actually being driven by those responsible for defending the claims when the NHS and the state are liable.
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In the context of an electorate who are angry and tired of scandal after scandal, from Grenfell to the Post Masters, Windrush to Infected Blood, we urge all candidates and political parties at these elections to heed our concerns with regard to this significant legal change.
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It is our contention these proposals would achieve the opposite of what they are intended to.
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THE RISKS TO PATIENTS:
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Claims are the result of negligence in the NHS – fixing costs and therefore reducing the ability to claim will not reduce negligence in the NHS
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The real issue is lack of patient safety learning across the whole of the NHS
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The costs of the Claimant; the already injured patients' costs will always be higher than those of the Defendant because the Claimant has to discharge the burden of proof
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The proposed reforms will disproportionately impact poorer injured patients as well as the elderly, disabled, women and those from ethnic minority backgrounds
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The proposed changes require patients to pay for legal representation from their compensation. This adds insult to injury.
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If these Fixed Recoverable Costs proposals are implemented, many specialist clinical negligence firms will be forced to exit this area of law, reducing access to justice and increasing the potential for scandals such as Shrewsbury & Telford Maternity, Nottingham and Mid-Staffordshire to be repeated and not exposed. According to Nottingham University Hospitals Trust 487 mothers and babies died while under their care between 2012 and 2023. These figures do not include stillbirths. (Source: ITV ‘Maternity: Broken Trust’).
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Clinical Negligence has been exempted from Fixed Recoverable Costs to date, unlike other areas of law because the very nature of the cases are more complex. This complexity has increased not abated so why should it be subject now?
FACT:
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Specialist law firms currently triage out around 90% of potential claims in this field at no cost. Under the new scheme those issues will either be then raised directly with an under-funded and overstretched NHS. Highly likely is that those constituents will also be raising those issues with their Members of Parliament, in their constituency surgeries.
DO NO HARM:
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It is for these reasons Do No Harm has been formed and needs your support.