Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Faulks. Both much regret that they cannot be here to join the debate. The noble Lord, Lord Faulks, is a practising Queen’s Counsel who concentrates on work in the field of clinical negligence. The renown of the noble and learned Lord, Lord Woolf, needs no repetition. Clinical negligence cases are perhaps as—or more—difficult and complex than any in the field of litigation. They tend to be extremely slow, expensive and to some extent unfair in the way that they unwind. The position under the Bill is that clinical negligence claims are taken out of scope, although the House will know that there is an amendment yet to be resolved which would keep the independent specialist or expert medical reports within scope. The importance of medical reports in clinical negligence claims cannot be exaggerated. Medical evidence is the vital linchpin around which such claims revolve. They establish whether there has been medical negligence and whether there is causation between the condition suffered by the would-be claimant and the event purportedly giving rise to it. Upon the expert medical report depends: first, whether a solicitor will take the case on a conditional fee agreement; secondly, the terms of the conditional fee agreement, because obviously if the solicitor does not like the sniff of the case he or she will maximise their benefit under the agreement; and, thirdly, the cost of insurance which is now almost an essential part of any clinical negligence claims because they are uniquely expensive. That, too, will depend of the expert report. Even with insurance, the cost implications of these claims are fearsome. Some may remember that in debates last week I referred to a case from south Wales referred to me by the NHS legal team there. A case taken under a CFA resulted in the claimant getting damages of £4,500 but the costs and expenses were over £98,000. The point of this amendment is really to have a long, cool look at the whole of the clinical negligence scene to establish whether—and, if so, how—we might better conduct this vexatious class of claim. I will refer briefly to a 2003 report by the chief medical officer for England, the consultation document Making Amends, which drew particular attention to the slowness, complexity and cost of these claims. Sadly, I do not think that much has come of the Making Amends consultation. In this field, the Welsh are streets are ahead of us. In 2002, the Welsh NHS report on alternative dispute resolution was produced. It led in 2005 to the setting up of a pilot project called the Speedy Resolution Scheme—again confined to clinical negligence claims. In 2006, the NHS Redress Act was past, which empowered the Welsh Assembly to set up its own redress regime. This was referred to—and still is—as ““putting things right””, and was a root and branch review that led last year to the NHS Concerns, Complaints and Redress Arrangements Wales Regulations 2011, which is still in the process of unwinding. Another aspect of the regulations comes into effect in April. In between that, there were additional measures. I mention this only to illustrate, in a way, just what a quagmire this area of legal claim is. The Welsh have grappled with it and the speedy resolution scheme is still running on. Swansea University has evaluated it and has a mixed report, with a good deal of compliments but a good deal of criticism as well. Those of us proposing the amendment thought that it would make a lot of sense to have a thoroughgoing independent review of all this so that the independent reviewer could come back to the Lord Chancellor and hence to Parliament with an assessment as to how, "““the accessibility, cost, effectiveness, openness, fairness, proportionality and speediness of””," these clinical negligence claims may be improved. Then, of course, with the report in its hands, the Lord Chancellor, Parliament and the Department of Health would have the opportunity to draw on it and to produce something which might need legislation or might not. At any rate, we have taken a leaf out of the Charities Act 2006, which provides in Section 73 for a review. I have also incorporated into the amendment some of the wording of the Welsh legislation. In brief, to finalise my remarks, I would like to think that my noble friend would welcome this initiative as potentially shedding a lot of badly needed expert light on a singularly vexed area of litigation, which could inure for the benefit of the NHS, of claimants and of everybody on this planet. I should just add that we have had discussions with AVMA, the specialist organisation that is involved with this type of claim. I beg to move.