The Balancing of the Scales: Cuts vs. Access to Justice

When a person becomes the victim of clinical negligence their life as they know it can change irrevocably.  The new challenges they must face can be daunting and costs in pursuing justice for themselves can be high.  At present a victim can take some comfort in knowing that with the assistance of legal aid the costs of the case and the monetary award they may receive at the end of their case can be one less aspect they have to worry about.  However with the government’s increasing changes to the legal aid system this may not remain the case.

On 29 June 2011 the House of Commons voted in favour of the Legal Aid, Sentencing and Punishment of Offenders Bill at second reading.  The bill contains important legislation with respect to the access to justice for injured people and removes entitlement to legal aid for clinical negligence cases.  It is now at Committee stage.

Clinical negligence cases can be very complex and whilst a person is trying to come to terms with often life changing circumstances, it is important they do not have the extra worry and stress associated with funding legal matters.  This raises concerns for Neil Lorimer, partner and Law Society Clinical Negligence Solicitors’ panel member who agrees and said, “Income can be lost by families in a flash and the damages that are recovered, as part of a compensation claim, are needed to replace lost income and to meet the injured person’s considerable needs.”

As well as the funding implications raised by this bill it is equally important to consider whether the parties will be on an equal footing in proceedings, Neil stated “It is an overriding objective of the rules which govern Court procedure that the parties should be on an equal footing.  No doubt the state will continue to fund the Defence of clinical negligence cases, how can it be just for the NHS Trust to have funding through the state and the Claimant without sufficient means not?”

Neil went on to say “I find it striking that all parties who are on either side of clinical negligence cases ie AVMA a Charity which promotes better patient safety , the Association of Personal Injury Lawyers, and the NHS Litigation Authority who defend Hospital Trusts  plus the Judges and Lord Jackson who wrote the report for parliament upon which the reforms are based are all against the withdrawal of legal aid in clinical negligence cases. “

Neil concluded “It is a retrograde step.  The UK should be proud of its legal aid system and not dismantling it.  The cost of legal aid for clinical negligence cases is a very small part of the overall legal aid budget”.

The question must be asked ‘will the victims needs and rights still be met, or are these to be sidelined in the pursuit of government cuts, and will the balance of the scales be unfavourably tilted away from justice for such victims?’

It is hoped not and that the government sees sense and removes this cut from the bill.