Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I join the noble Lord, Lord Beecham, in congratulating those who have taken part in what has been a very serious debate. The Committee has benefitted from experience: the experience of those who have practised law in this sphere; the personal experience of my noble friend Lady Eaton and the noble Lord, Lord Howarth of Newport; and the experience of those who had formerly been Members in another place—my noble friend Lord Carlile of Berriew and the noble Lord, Lord Wigley, have had to deal with issues such as this in the course of their constituency work. A number of your Lordships asked that Ministers would listen. In a debate of this profundity it is only appropriate that we should reflect on the many contributions that have been made, contributions which carry forward a number of the concerns that were expressed at Second Reading. As well compensation, clinical negligence also raises the point which was reflected on by the noble Lord, Lord Clinton-Davis: the importance of standards for those who provide medical treatment. Related to that, the Department of Health is currently consulting on our duty of candour proposals, with the intention of implementing these through contractual changes. These proposals will make sure that providers of NHS care are more open with patients about harmful adverse effects. We would expect the duty of candour to apply to NHS patients treated, typically, in hospitals, where at least moderate harm results. The proposals specify that, "““There must be appropriate investigation undertaken to establish the facts of an incident””," and that, "““New information that emerges during an investigation … must be shared with patients and their carers/families within 5 working days of its inclusion in any incident report””." We would expect that claimants’ solicitors could use a duty of candour when investigating potential claims. This might act as a lever to identify when NHS providers are non-compliant. Providers could also use these requests as an indicator for a potential claim being made, prompting early action to resolve the matter before claims are made. Overall, we believe this should facilitate access to justice and help speed up settlements. There is a general acceptance that the way in which the NHS handles claims has improved significantly over recent years, but, as I have indicated, it is important that we continue to ensure that we have the highest standards and the best practice in dealing with incidents such as these when they occur. The amendments which have been spoken to have as their common theme the extension, in one way or another, of legal aid in cases involving clinical negligence. We recognise that many of these cases raise serious issues, especially where damages are required to meet future care needs. My noble friend Lord Carlile talked about particular parents who are overwhelmed not only by their current care responsibilities but also by the knowledge that they face—well into the future in many cases—continuing care responsibilities to their children. These are serious issues, which can lead to very substantial claims for compensation. We also recognise that some litigants will be vulnerable because of disabilities resulting from negligent treatment. My noble friend Lord Faulks acknowledged that the Government have recognised the seriousness of these particular issues, because clinical negligence claims are not being treated like personal injury claims, or indeed like other torts. My noble friend Lord Faulks also indicated that the Government had sought to engage constructively to address these issues, although he expressed very serious concerns and reservations about the different proposals that have been brought forward to try to address them. I will try to deal with these in the course of my reply. He indicated, for example, some scepticism as to whether the conditional fee agreement could replace legal aid. Figures from the NHS Litigation Authority show that in 2010-11 approximately 82 per cent of clinical negligence cases where the funding method was known were funded by means other than legal aid, such as conditional fee agreements, ““before the event”” insurance, legal expenses insurance and private funding. We considered the fact that there are viable alternatives to legal aid in this area when coming to the view that legal aid would not be justified in these cases and that—as has been a frequent refrain in these debates—limited funding should be targeted in other areas. Given the way in which the debate was opened by the noble and learned Lord, Lord Lloyd of Berwick, it is probably appropriate if at the end I return to some of the specific and important points he made. Amendment 30A would enable the claimant to seek advice from an independent medical expert on the merits of their clinical negligence claim. It also provides for the appointment by the NHSLA of a single expert medical witness from a list maintained by the NHSLA and the AvMA. The noble Lord, Lord Howarth of Newport, expressed some concern that we have not always been able to coalesce around a single expert. My noble friend Lord Phillips spoke to this. The amendment itself would not establish the list from which an independent medical expert can be drawn; nor would it compel the NHSLA to participate in formulating a list. It would simply extend legal aid to cover the instructing of an expert on such a list, were it to be created. In the example that he gave, my noble friend Lord Phillips referred to damages of around £4,500 or £5,000 and costs of £90,000. If ever there was a case for reform generally, I think he made it. We have certainly conducted a public consultation this year on how lower-value cases, such as the one he referred to, should be dealt with more efficiently in the county courts. Officials in the Ministry of Justice are working closely with the NHSLA in considering whether a lower-value scheme, similar to that which currently operates for low-value road traffic accident cases, would work for lower-value clinical negligence cases. Such a scheme would introduce fixed recoverable costs for various stages of a claim, and would therefore introduce transparency of costs for each case. Negotiations are currently going forward between the NHSLA and representatives of the claimants’ lawyers. The other issue that is perhaps related to this was raised by the noble Baroness, Lady Finlay, the noble Lord, Lord Howarth, and my noble friend Lord Thomas. They expressed concerns about whether the abolition of legal aid might drive down the quality of the solicitors and firms that deal with these very sensitive cases. We are certainly aware of concerns that the removal of legal aid will lead to a drop in the quality of work done on clinical negligence cases because the contractual controls imposed under legal aid rules will no longer be there. It is important to remind the Committee that legal aid funds only 18 per cent of these claims. Therefore, there is already extensive expertise in this area in the CFA sector. Indeed, many of these are the same firms, which conduct cases under the CFA or legal aid as suits them best. An important issue has been raised by several of those who have contributed to the debate about the commissioning of reports, particularly joint expert reports. The Government are very sympathetic to how this can be improved. We are working closely with the NHSLA and other stakeholders to discuss how joint expert reports can be commissioned wherever it is possible. This would involve the NHSLA commissioning and sharing expert reports on liability at an early stage. The point about these being shared with claimants at an early stage was made by a number of your Lordships. This could in turn help to encourage the early notification of claims. I certainly consider that the key concern in both of the amendments to which I have referred is the absence of expert reports, making it difficult to establish whether a clinical negligence claim has merit. We recognise these concerns and those about how claims will be financed in the absence of legal aid. My noble friend Lord Faulks described the Government’s response but one of the other things that we have done relates to after-the-event insurance. This is usually taken out by claimants in conjunction with a conditional fee agreement and covers a party against liabilities that they will incur if a case is lost. This insurance includes protection against any liability to the other party under an adverse costs order and provides for an up-front payment of the claimant’s own disbursements, such as medical expert fees. At present, where a claimant wins, their ATE insurance premiums are recoverable from the losing party and, in practice, are not paid up-front by the claimant. Under our reforms generally, recoverability of the ATE insurance premium is being abolished. However, the Government are retaining recoverability of ATE insurance premiums in respect of expert reports in clinical negligence cases. I know that this is an area to which we will return. The noble and learned Lord, Lord Lloyd, probably thinks that it is a less effective and efficient way of dealing with this.