Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession to admit fault. I have a son who was brain-damaged at birth. The evening after he was born, I spoke to the consultant gynaecologist, a very famous individual, who reassured me that that there was no reason to suppose that anything had gone wrong. But when the diagnosis of cerebral palsy was made, and my wife and I decided that we ought to pursue the possibility of a clinical negligence claim, we found—I am not sure that it is really surprising, though it is very shocking—that the file had gone missing, and it took a considerable time to obtain it. We know that clinical negligence claims take a very long time to pursue. Part of the reason for that is the intransigence of the system—it is very human; it is very understandable—and we have to be realistic about that. In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so? We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer’s real figures, for the average cover of £2,000 needed for preliminary investigations—which does not include the high investigation costs of cases such as catastrophic birth injuries—the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved. If the Government’s proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view. Finally, I will quote to the Committee, if I may, a paragraph from a paper by the NHS Litigation Authority, which is impressive. Its view ought to carry weight with the Committee. It says: "““Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical ""negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.””" That is powerful evidence that I am sure the Government have considered, but that the Committee also ought to consider.