Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I have my name to Amendment 36B, as does my noble friend Lady Grey-Thompson, who has sent a message to apologise that she has unfortunately been delayed, despite making every effort to get here for the opening of this debate. I hope the Minister will reflect on all the comments that have come from around the House. We have heard some very eloquent speeches packed with information. The real problem here is what are the unintended consequences of this change and who is going to be harmed by it? One problem is that those who stand to lose the most in clinical negligence are indeed those harmed at birth, and children, because they are unable to be advocates for themselves, and their parents are often in more financially straitened circumstances than others. In Wales we have a disproportionate number of people who are at a lower income level and have therefore been eligible for legal aid. Therefore, we have instigated a system called Putting Things Right, which has already been alluded to, which allows a speedier and more cost-effective means of resolving claims below £25,000 in value without the need for litigation. However, the problem for patients in general is that they entrust themselves to the NHS and they expect to receive care. When things go wrong, this may be because medicine is shades of grey, but when there is clinical negligence there really is the need for some support—not in terms of redress, because you cannot undo what has gone wrong—but to help people cope. But the problem is that they are also dependent on the NHS itself for their ongoing support and care, which puts them in a different situation to those harmed by others generally, who can avoid contact with the system that has harmed them. Some things that go wrong are catastrophically awful, and are the result of a series of errors rather than something which can be pinned on one person. I would concur with the comments made by the noble Lord, Lord Carlile, that clinicians generally are not quick enough to reflect on where things have gone wrong, to take action and to be open enough about it. Introducing change is a really slow process, but the lessons that have been learnt are a really important way of driving up standards. The problem with taking clinical negligence out of scope is that it will mean that some of those with the greatest need will not have any access to any form of recompense for what has gone wrong. In addition, some of those who have less reason to pursue a claim may be tempted to do so, because the conditional fee arrangements will mean that any solicitor can effectively have a go without the safeguard and quality control currently afforded by the restriction of legal aid franchises, meaning that currently a solicitor has to be a specialist. If a solicitor is not specialised enough, they may fail to investigate adequately. The other problem is that by being underrepresented, those who really need it may not get the compensation that should rightfully come to them. The problem in terms of patient safety and avoidable errors has to be addressed when looking at changing a system like this. The cost savings have already been somewhat debunked as the costs are being transferred from one ministry to another. I would urge the Minister to listen to the NHS Litigation Authority in England and the Shared Services Partnership in Wales, which want clinical negligence kept in scope for legal aid. The plea to take it out has not come from anywhere within the NHS, and I hope that he will reflect carefully on the unintended consequences that have been addressed in this debate.