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Thursday, 2 July 2015

Medical Negligence, Criminal Legal Aid - a government at war?

It has only taken a few weeks for the new Conservative Government to launch a full on war against the Legal Profession. 

We are all familiar with the shameful cut in fees for Criminal Legal Aid work which has seen action taken by firms across the country that are refusing to work at the new rates. I am not proposing to comment at length on that as it is not my area of work, save to say that these are some of the most dedicated lawyers around. They work long and often unsociable hours for a return that appears designed to grind them into the ground. Those lawyers deserve our credit and support.

In the meantime the expected attack on Clinical Negligence work has begun.

Earlier this week the Health Minister, Bun Gummer, announced an intention to cap fees paid to those who act for victims in cases where damages are less than £100k.

Why has this statement come from a Health Minister? The Department responsible for standard of treatment is seeking to control the fees payable to those who represent victims of their negligence. Is the Minister of Justice too busy battling with everyone else?

The speech is alarming to say the least. He talks about ‘unscrupulous’ behaviour from lawyers who run up huge costs. This suggests that anyone who has the effrontery to fight for their client is somehow unscrupulous. How dare they! If the NHS made early admissions then the costs would be lower. If they force a victim to fight every inch of the way then they should not complain about having to pay if the case succeeds or settles at the last minute.

He says that the fees should represent a percentage of the compensation. So a victim who is dragged through contested litigation to trial and gets an award of say £50k will only recover a percentage of that amount in legal costs. The Trial itself would cost more than that. It is his government that has increased court fees which would eat up 5% of a £100k claim. Are we taling about all costs including these court fees and expert fees? This sounds like back of an envelope rhetoric but that has not stopped this government in the past.

Mr Gummer then relies on the familiar phrase – ‘hard working taxpayers’. In my experience most victims of clinical negligence are hard working tax payers. Those victims will end up seeing further deductions from their damages if they cannot recover their legal costs in full, from the negligent medical practitioners.

If he wishes to save money for the NHS the focus should be on reducing the number incidents that occur such as queues of ambulances backed up outside hospitals. Or there could be a new streamlined process that will secure justice more quickly and efficiently. But that requires positive contribution from all sides rather than throwing insults victims’ lawyers.

Finally the Ministry of Health promise consultation with ‘stakeholders’. Will that include those who represent victims and who he says are unscrupulous? This is disturbingly reminiscent of the discussions between the government and insurers of road Traffic claims from which Claimant lawyers were excluded.

There are systems in place to ensure that costs are not unreasonably incurred in complex cases. Even though the budgeting experiment seems doomed in Clinical Negligence cases, the costs are still subject to assessment by the court. I would fully support the comments of Deborah  Evans of APIL - 

'As a defendant, the NHS Litigation Authority has the right to ask the court for justification of what it has to pay when it loses a case. The fees reflect the fact that clinical negligence cases are complicated and require a great deal of skill and investment of time and resources just to establish whether there is a valid claim,'

I suspect that this will ultimately lead to fixed fees. Provided those fees are reasonable they are probably inevitable in time and should hold ne fears for those who work efficiently.

Tuesday, 23 June 2015

The Word of Gove - The New Lord Chancellor Speaks (Updated)

Our new Lord Chancellor, Michael Gove will give his first major speech today since taking over from our dearly departed Mr Grayling. 

We are told that he will say that our justice system is failing ordinary people whilst looking after the rich.

You can imagine my excitement on reading some of his comments –

“While those with money can secure the finest legal provision in the world, the reality in our courts for many of our citizens is that the justice system is failing them. Badly.”

“There are two nations in our justice system at present. On the one hand, the wealthy, international class who can choose to settle cases in London with the gold standard of British justice. And then everyone else, who has to put up with a creaking, outdated system to see justice done in their own lives.”

Has he been reading this blog for the last three years.

Sadly the content is less exciting.

He does not mention the real injustices of our system such as –

The further cuts in fees to those who represent those charged with criminal offences.

The virtual elimination of civil legal aid since April 2013

Courts grinding to a halt as they try to cope with unrepresented litigants

£10,000.00 to issue a Claim Form for a severely injured victim

And so we could go on.

Mr Gove’s first priority seems to be improving technology – ‘to ensure that cases are dealt with efficiently, speedily and above all justly’

I’m afraid this a bit like tidying the deckchairs on the Titanic. But who knows? It could be a start. At least he seems to acknowledge that all is not well with our justice system. He even acknowledges that those with money get a better deal than anyone else.

The hope is that he will be less confrontational with the profession than his predecessor. Although my teacher friends wept with me when they learned that he was to take over at the helm!


Mr Gove has now delivered his maiden speech. It was much a trailed above. He has thrown in one old chestnut, suggesting that lawyers should provide more pro bono advice –

When it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the minimum wage’

How much more would he like? Lawyers do huge amounts of free work from giving diagnostic advice, manning surgeries at advice centres, drafting letters etc. Does he seriously think that that well meaning free work can come close to filling the chasm left by the legal aid cuts? He was extremely unpopular with teachers but I don't ever recall him suggesting that they work for nothing.

Why does he choose to mention taking more in tax from someone on the lowest possible pay? Do they have to carry the burden of funding justice?

I’m afraid any glimmers of hope have now faded…

Monday, 22 June 2015

Insurers now attack deafness claims - what next??

The Association of British Insurers (ABI) is developing a habit of selecting certain areas of legal work. It then launches attacks on the integrity of both victims and their advisers. The latest target are workers who have been exposed to excessive noise at work and suffered hearing loss as a result.

They are reportedly seeking a ‘crackdown’ on such claims using tactics that they successfully used in relation to ‘whiplash’ claims. They say that out of 200,000 claims submitted less that one fifth were eligible for compensation. That tells us nothing about the genuineness of victims. It tells is that there are lawyers are submitting claims which they have not properly screened and for which neither they nor their client will get paid. It might even identify some lawyers who should not be dabbling in specialised work.

Their spokesman James Dalton refers to a similarity between concerns over medical evidence in relation to deafness and whiplash claims. In fact they could not be more different. Medical evidence in relation to whiplash injuries is by nature subjective. It is not always possible to verify the extent of a purely soft tissue injury.

Noise induced hearing loss is capable of very detailed objective assessment. A carefully prepared audiogram alongside a history of working with noise provides a clear basis to pursue a claim. In many cases I could tell you if the hearing loss is likely to be caused by noise.

The only similarity to whiplash cases is that insurers don’t like them.

The report goes on to complain that costs can heavily exceed the value of the claim. In saying this they ignore the behaviour of insurers –

In this earlier blog I talked about a case where the insurers decided to throw the kitchen sink at our client’s case. I think the hope was that the costs would become so high that we would lose our nerve. The case settled for £4.5k and the costs were eventually agreed at £69k. This was a case that should have settled early at a fairly modest cost. Why is this the victim’s fault?

There is something disturbing about these ‘reports’. The ABI seems to be intent on defeating genuine claims by the back door. Rather than go through due process, they rely on the support of a government, which consistently gives them what they want.

There is no evidence at all to support this move.

But you can be sure that we will soon be reading tabloid headlines referring again to a mythical ‘compensation culture’. Rules will follow that will seek to restrict the rights of workers.

There are many battles ahead.

Tuesday, 16 June 2015

Young Lawyers - now facing a poshness test???

I had a fascinating telephone discussion last week, with an opponent from Newcastle Upon Tyne. As soon as I introduced myself, she that she knew who I was by my Liverpool accent. She was saying this in a voice that could have belonged to Cheryl Fernandez-Versini, formerly Cole!

According to some recent research neither of us would pass the ‘poshness’ test favoured by many so called elite law firms. The report from the Government’s Social Mobility and Child Poverty Commission found that such firms were overwhelmingly likely to recruit from students who had attended private schools. Top of the poshness class was Slaughter and May, 50% of whose partners were privately educated.

Some firms actually said that it was too costly to recruit from a broad class base –

This tells us much about the different world in which some lawyers live and work. Nearly all of the lawyers that I know, went to state schools and did not go to Oxbridge. I would certainly fail any poshness test by some distance.

But this does raises a worrying issue about the direction of our profession.

I was one of the very fortunate generations who did not have to pay tuition fees and also had a student grant for spending money! Students are now finishing college with debts of about £50k. It is becoming increasingly difficult for graduates to obtain training contracts, and even harder for aspiring barristers to get pupillage. Many law firms recruit paralegals who have passed their exams and who then work for many years in that role in the vain hope of being offered a training contract. I am sure that many just get lost in the system and eventually give up hope.

A couple of years ago I referred to concerns from Lady Hale that many students aspire to a career that they can never have –

There is a real risk that the law becomes a career option for the privileged. Why would any talented student want to rack up eye watering levels of debt only to find that there is no job at the end. We could see the day when only those who are well off or who have relatives in the profession have any chance.

Society needs a diverse legal profession.

Many of today’s young lawyers become tomorrow’s judges –

As far as I am concerned the elite can keep their poshness tests. 

But if I was starting today that would not be the only barrier. It is highly unlikely that I would have made it. I would certainly have been more relaxed if my lawyer son had told me he wanted to be in a rock band.

We all need to look at ways of broadening access to the profession. A review of tuition fees would be an encouraging start. Relaxation of the SRA’s training regulations should also encourage firms to offer proper training contracts rather than never ending paralegal work.

But we must do something...

Friday, 12 June 2015

The Justice Minister from A Galaxy Far Far Away!

In one sense Lord Faulks QC should be congratulated. In a masterpiece of concision he has managed to summarise the government’s contempt for Access to Justice in one short sentence. Speaking in the House of Lords this week on the impact of Legal Aid Cuts, the Justice Minister said –

‘But the question that arises out of social welfare law is whether it is always necessary for everybody who has quite real problems to have a lawyer at £200-odd-an-hour, or whether there are better and more effective ways of giving advice.’

Politicians are often accused of being out of touch with the real world. By that test he is well ahead of the field.

Before 2013 there were hundreds of agencies providing advice. Lawyers were in the minority. For example the housing charity Shelter had provided advice on housing and homelessness for many years. Much of their work was funded by Legal aid contracts. In the run in to the April 2013 cuts they had to close down this service –

In the same year I met with workers from Citizens Advice Bureaux in Liverpool and wrote –

‘Advice on welfare benefits is removed entirely from the scope of legal aid. The Liverpool Citizens’ Advice Bureaux have been among the leading providers of advice in this field. In the last few years they have been able to assist 2500 people in debt cases and 6270 people with welfare rights issues. That is a total of 8770 people is the direst of need. After 1st April they will be able to advise…. None. Of course their dedicated workers do not want to let people down and many will continue help clients on a voluntary basis. But the reality is that thousands of our most vulnerable are going to be deprived of professional advice and assistance.’

Is it these agencies that Lord Faulks has in mind when he talks of – ‘better and more effective ways of giving advice’? Then why have they been starved of funding? In the same debate Lord Bach for the opposition said that the 52,000 social welfare case that received funding in 2014 marked an 88% drop compared to 2010.

But the Minister's genius doesn’t stop there. Not only has he insulted the entire voluntary sector, he has also managed to insult legal aid lawyers in the same sentence. £200 an hour? Legal Aid Lawyers would give their right arm to be paid anything like that amount. In the same week that Lord Faulks has made his bizarre claim, the MOJ has announced an 8.75% cut in legal aid fees –

Remember that from these fees firms have to pay wages, rent, IT costs etc and work long and anti-social hours. I wouldn’t do it!

This is the same Lord Faulks QC who recently said that litigation was ‘very much an optional activity’. Try saying that to the parents of Janet who I wrote about last month –

What is most alarming is that these are not the words of a young career politician who has never worked in the real world. He was a busy silk who acted for victims of medical negligence. I briefed him once, about 15 years ago. He did legal aid work. But that makes it all a bit more frightening. Is he simply sticking to his ‘brief’. Or is he reflecting the attitude of a government that, as far as justice goes, has bought into the philosophy of Homer Simpson?

‘Just because I don’t care, doesn’t mean I don’t understand’

Saturday, 6 June 2015

Saatchi Bill - Pointless and Dangerous

We will shortly see the return of the Medical Innovation Bill which is promoted as a Private Peers' Bill by Lord Saatchi. The bill was derailed earlier this year when Liberal Democrat MPs blocked its debate. Lord Saatchi is more confident of success as that particular hurdle has been spectacularly wiped out by the electorate. 

The Bill has populist support, which, alarmingly, includes the Labour Leadership candidate and shadow Health Secretary, Andy Burnham –

From a lawyer’s perspective the Bill is pointless and, if anything, slightly dangerous. The idea behind it is that medical practitioners should not be deterred from trying innovative medical techniques for fear of being sued. The key section of bill says –

‘It is not negligent for a doctor to depart from the existing range of accepted medical treatments for a condition if the decision to do so is taken responsibly.’ (s1 (2)).

We need firstly to look at the legal position as we have had it since 1957 – when I was 2 years old! This was a case called Bolam v Friern Hospitals Management Committee. This set out the classic test for deciding whether a medical practitioner has been negligent –

"a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

Note the word ‘responsible’. In other words it is for the medical profession to decide what is acceptable practice – not lawyers, judges or politicians. This has been with us for all of my professional life. It is not a perfect test but it works. I’ll come back to this in a minute.
Another important factor in medical treatment is patient consent. If a doctor interferes with a patient’s health without informed consent they could be guilty of assault. This was looked at by the Supreme Court earlier this year in the case of Montgomery v Lanarkshire Health Board. When deciding what should be said to a patient about risk  the test is this –

“The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.”

So let’s say a patient is facing a life threatening condition and there is innovative treatment available that could fail. What we need to ask is firstly whether there are responsible doctors who, faced with these facts, would regard the proposed steps as reasonable. If so then then it is not negligent. The word 'reasonable' straddles Saatchi’s bill and the old Bolam test. Then if we look at the 2015 case of Montgomery the patient’s consent to that treatment is also crucial – ‘the importance to the patient of the benefits sought to be achieved by the treatment.’ So a patient who has consented to treatment which would be acceptable to a responsible body of doctors, has no basis to litigate, provided the risks and benefits have been properly considered.

I have acted for hundreds of patients over the last 25 years and have never had a case where this issue has arisen.

This is why the Bill is pointless. It adds nothing to what we already have. Indeed the Bill says as much in Section 2 – ‘Nothing in Section 1 … affects any rule of the common law to the effect that a departure from the accepted range of medical treatments for a condition is not negligent if supported by a responsible body of medical opinion.’

Why is it dangerous? Because it should always be for the medical profession to set the bar in  relation to treatment. There need not not be unanimity but so long as there is reasonable support among doctors then lawyers and politicians should not keep out of it.

This is clearly an issue of some importance to Lord Saatchi who has had his own tragic experience. But that cannot be the basis for legislation. As The Spectator’s Isabel Hardman says –

“Saatchi drew up this legislation after the death of his wife, Josephine Hart, from ovarian cancer. His Bill is undoubtedly borne from grief and a desire to do something to stop very sick people dying if there is something that can be done to save them. But a bill borne from grief is not automatically a good bill. Neither is a bill introduced by someone who has great power and commands great respect from those in government. A grieving person can be wrong, as can a powerful person.

I hope that Parliament sees sense and is not influenced by emotion or populist support.

[The aim of this blog is to raise issues of law and procedure for discussion - it should not be treated as legal advice in relation to any particular issue.]

Thursday, 28 May 2015

Human Rights Act - The Blog that Never Was

So there I was all ready to write an epic blog about the Human Rights Act.

I was going to refer you all back to my 2013 blog about the history of the UK’s role in the establishment of the Universal Declaration of Human rights after WW2, and that we would be standing virtually alone in Europe if we opted out of the European Convention on Human Rights –

Then I was going to rant about how the rights at stake were the rights of all of us and not just those who are disliked by the tabloids. I planned to go through the Act and point out that there is not a single word in it that suggests that prisoners are entitled to have a Big Mac brought to their cell.

The most important point that I intended to make was about the jurisdiction of the UK courts. The main impact of the HRA was to make breaches of Human Rights contained in the Convention, actionable in our courts. Prior to the Act only the European court had jurisdiction. It always seemed to me that the Conservative Party’s determination to remove the Act was illogical because the result would be that UK courts would lose the power to adjudicate and this would be handed back to Europe.

The counter argument was that our courts had to follow the judgments of the European Courts. But this is simply wrong. What the Act says is –

‘2 Interpretation of Convention rights.

(1)A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b)opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c)decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d)decision of the Committee of Ministers taken under Article 46 of the Convention,’

So our courts have to ‘take into account’ decisions of the ECHR and Commission. They are not required to follow any such decision. This was a point made by Leveson LJ (he of the inquiry!), earlier this week. He said that the decisions of ECHR were less binding than people thought. He declared that he did not consider himself – ‘crushed by the European Jackboot’.

So that was what I intended to say in my epic blog!!

After all that hard work it was it was a bit frustrating to see that the government’s plans to abolish the HRA have been delayed for at least a year. They could have waited until I had blogged on it so I could grab some glory!

In truth this is a very encouraging development, but there are still battles ahead. Does it mean that Mr Cameron has seen the error of his ways? No. I think it is much more about the precarious effect of a wafer thin majority. Some high profile Tories had pledged to oppose the move. These included former Justice Minister Ken Clarke QC and former Attorney General Dominic Grieve QC. Even if a bill had scraped through the Commons it would have been mauled in the House of Lords. It is encouraging that sensible backbenchers can hold their own party to account.

But this is not the end of the story. I doubt if this story will go away. It remains a manifesto pledge. Cameron’s friends in the media will expect something. The arguments will continue and we must not let our guard slip.