Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Eaton and Baroness Grey-Thompson

Wednesday 7th March 2012 Lords Chamber

[Baroness Grey-Thompson]

My Lords, I will speak to Amendment 15, which is in my name and in the names of the Baroness, Lady Finlay of Llandaff, the right reverend Prelate the Bishop of Oxford and the noble Lord, Lord Beecham. As my noble and learned friend Lord Lloyd said, this amendment seeks to retain clinical negligence cases within the scope of legal aid. It is completely non-discriminatory, is not based on age or condition and saves money.

The Government have so far argued vigorously that many cases would be funded by the proposed exceptional funding mechanism and that it was not necessary to guarantee this by retaining them in scope. While it is an improvement to have the situation clarified and legal aid guaranteed for at least this small band of cases, that is, in effect, all that the Government have provided—clarification and a guarantee of what was already on the table.

I am pleased that the Government have moved forward on the retention of obstetric cases in scope, as opposed to relying on the exceptional funding route. This is very positive. In its statement announcing the change of approach, the Ministry of Justice said:

“We also agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid”.

It went on to say:

“A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue”.

This safety net is the same one that we were told meant that there was no need to retain even the obstetric cases in scope for legal aid because exceptional funding would take care of them. It is perhaps logical to conclude that exceptional funding is no more of an adequate safety net for other highly complex and deserving cases than it was for obstetric cases. Just about every clinical negligence case is complex, which is why, over time, successive Governments have agreed that clinical negligence needs to be kept in scope for legal aid. Not only would taking most clinical negligence cases out of scope result in higher costs to the taxpayer overall, but those costs will still be there but pushed somewhere else. Even more worrying, many people will be denied access to justice.

The independent report by King’s College London identified that the unintended consequences of taking clinical negligence out of scope for legal aid would be almost three times the projected saving for the Ministry of Justice budget—costs of £28.5 million set against a “saving” of £10.5 million. These clinical negligence cases which are not in scope for legal aid will in future be able to take their cases forward either through no-win no-fee agreements or with the benefit of exceptional funding. Under the new system, even if an expert report deems a claim to be valid, there is no guarantee that the claimant will receive representation under a conditional fee arrangement. “After the event” insurance is expensive, if, indeed, it is possible to obtain it. I do not believe that exceptional funding is a sufficient safeguard.

If the Minister revisits the responses to the consultation on legal aid, he will find that the vast majority of lawyers involved in clinical negligence cases say that they will not be able to take on many of these cases under the new arrangements. The noble and learned Lord, Lord Lloyd, cited Lord Justice Jackson, who said that the most expensive and inefficient mechanism that it is possible to devise is being put forward to achieve this policy objective. I agree with that comment. Solicitors will be forced to cherry pick only the most obvious cases of negligence, with others being left with no way of moving forward. I do not believe that this is acceptable in our society.

[Baroness Eaton]

My Lords I ask noble Lords to support Amendment 31, which stands in my name and in the names of my noble friends Lord Newton and Lord Cormack and the noble Lord, Lord Crisp.

Amendment 31 would allow legal aid for all children who are victims of clinical negligence and not just some children, which, unfortunately, is the current position of my Government. I have both personal and professional experience of these cases as a mother and a former leader of a metropolitan district council. I would like to tell noble Lords something of my experiences. When my eight year-old boy was diagnosed with a psychosomatic illness, my husband and I went through the worst time trying to persuade doctors that something was seriously wrong. Eventually, the diagnosis was found to be faulty and we discovered that our son was in fact suffering from a very virulent form of bone and tissue cancer. Even though we had a very strong clinical negligence case, my husband and I decided not to pursue it because it would be too stressful and we had the resources to support my son. However, not every family is in this privileged position, and I met many through those dark times, and since, who needed to make a claim so that their families could survive.

I have seen at first hand how compensation for medical negligence allows parents to continue to care for their children in their own homes. It does not make it easy but it does make it possible. I have also seen what happens to parents who do not receive financial compensation. Caring for a child who has been the victim of a medical accident and is severely disabled, sick or injured normally gets progressively more difficult and can frequently result in separation and divorce and depression and other mental health disorders in parents. It can also result in an inability to care for other children in the household and parents losing their jobs, becoming homeless and having to be rehoused in social housing, and with the victim having to be cared for in residential homes away from their family. In other words, everyone ends up suffering—a child who is the victim, the parents and the wider family and the taxpayer. As a councillor, I know that all too frequently the local authority has to pick up the pieces and the financial cost.

The proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill can only make a bad situation worse. The concession proposed by the Government allows legal aid where a baby is the victim of clinical negligence from the period of conception through to eight weeks after his or her due date in the case of neurological injury only. It relates only to babies who have suffered damage to their brain. As I understand it, children with physical disabilities resulting from clinical negligence at birth are not covered, and conditions such as Erb’s palsy would not fall into the category of receiving aid. This means that if a full-term baby is the victim of clinical negligence when it is 73 days old, he or she will be ineligible for medical negligence. However, if he or she suffers neurological damage two days earlier at 71 days, they can be granted legal aid. This seems a rather arbitrary and upsetting situation. I ask noble Lords to try to imagine how they would explain to their friends, family and neighbours why a baby who suffered neurological injury at birth could have legal aid but a baby blinded at birth, say by a forceps delivery, could not. Last year, £4.6 million was spent on legal aid for children who were victims of clinical negligence. The majority—estimated to be around £3 million—went on legal aid for babies who suffered neurological damage. As I say, this group has been conceded by the Government, so in reality we are arguing about a further £1.6 million or so to cover all remaining children.

I wish to tell noble Lords about Sophie Tyler from Newport. When Sophie was 14 years old, she went into her local hospital for a routine bladder operation. She underwent an epidural, which, sadly, went very wrong. Sophie is now paralysed from the waist down and will always be in a wheelchair for the rest of her life. Sophie is now 17 years old. She took action with the help of legal aid, and three years on she has received a medical insurance payout. This compensation will never make amends for what has happened to Sophie, but it will make it possible for her to live independently with support. In the cases of children, compensation pays for extensions to be built downstairs with bathrooms and bedrooms so that children do not have to be carried upstairs, which is more difficult when they become adults. Compensation pays for the widening of doors to allow wheelchair access and for hoists, electric wheelchairs and other specialist equipment not available on the NHS. It pays for occasional night-time and holiday respite care so that parents can get some much needed sleep and it pays, where possible, for extra tutoring to make up for lost schooling along with additional physiotherapy and holidays. Above all, compensation allows parents to carry on in the knowledge that there is someone who will take care of their child after they themselves die. Believe me, this is what worries parents more than anything else.

I therefore ask noble Lords to support children like Sophie next year and the year after—children who, through no fault of their own, become the victims of medical negligence and need legal aid to pursue their cases. I hope that my noble friend the Minister will concede legal aid for all children and recognise that although the concession proposed by the Government supports children with neurological injury, it does not address the needs of the remaining children who suffer hugely as a result of medical negligence and accident.