Cap on Clinical Negligence Legal Fees: Blackwater Law Lobbies Against Proposals

Dominic Graham, clinical negligence solicitor at Blackwater Law, has met with a second MP to lobby against the cap on clinical negligence legal fees proposed by the government.

The new regulations could risk limiting consumer access to legal advice in cases of clinical negligence, and could seriously jeopardise the future performance of the NHS.

Dominic Graham Meets Will Quince, MP for Colchester

Mr Graham met with Will Quince, Member of Parliament for Colchester, on 2nd September to raise concerns over government proposals which Blackwater Law argues will reduce your ability to fight for compensation for injuries and illness caused by poor medical care. This meeting follows a meeting back in May between three of Blackwater Law’s senior clinical negligence solicitors and James Cleverley, MP for Braintree where the same issues and concerns were discussed.

What Will a Cap on Clinical Negligence Legal Fees Mean?

It is proposed that fees paid to clinical negligence solicitors be capped at a set amount in cases where compensation for the victim is estimated to be valued at up to £250,000. The cap on clinical negligence legal fees has been proposed by the Government in response to the widely reported worsening financial situation within the NHS.

In August we reported how NHS trusts are being allowed to miss waiting time targets without financial penalty in order to save money, and the Government believes that placing a cap on clinical negligence legal fees will enable it to save even more. However, Blackwater Law and other medical negligence solicitors have serious concerns about the proposals and how they will impact the long-term future of the NHS and victims of medical negligence.

Why Blackwater Law is Lobbying Against the Proposals

There are several fundamental problems with the changes proposed by the government and why we are dedicated to fighting these changes on behalf of the public and users of NHS services. Dominic discussed each of these with Will Quince MP.

1) Proposals Focus on Saving Money Rather Than Improving Performance

The proposed changes are focused on reducing the legal costs involved in compensating for incidents of clinical negligence and pay no attention to making improvements to NHS services that would reduce the number of incidents of clinical negligence. Not only would a focus on reducing the incidence of clinical negligence save the NHS money, it would also reduce the number of individuals who die as a result of medical negligence or whose lives are changed forever due to the injuries or illness caused by such events.

2) Access to Justice Will Be Greatly Restricted

Access to justice will be greatly limited in all but the most serious of clinical negligence cases. This means that if a patient receives medical care and a medical professional makes an unreasonable mistake (or multiple mistakes) in the delivery of that care which exacerbates the presented injury or illness, or means the patient suffers injury or illness they otherwise would not have suffered, the patient may not be able to get legal advice on a “no win, no fee” basis. Therefore, unless the patient is able to pay for a specialist clinical negligence solicitor themselves, up-front, they may not be able to bring a claim for reasonable compensation. The patient will therefore have to write-off any losses they have incurred (loss of earnings, medical care and rehabilitation) and they will not receive funding towards any future care or private treatment that they may require.

If access to justice is reduced, fewer clinical negligence claims will be instated against the NHS. Whilst Blackwater Law argues this is part of the government’s motivation for the proposed changes, this will not be because there are fewer incidents. It will simply be that few people are able to afford specialist legal representation. If fewer cases are being brought against the NHS, who then is raising the issue of poor care, who then is ensuring mistakes are highlighted and lessons learned, who then is acting to reduce the incidence of clinical negligence in the NHS and ensure more patients and families do not needlessly suffer?

3) Proposals Reduce Legal Fees and Ignore Other Significant Costs

The proposals only focus on reducing the legal fee element of the costs involved in compensating patients in cases of clinical negligence, they do nothing to address the other significant costs that are involved in a clinical negligence compensation claim, these being medical reports, court fees and insurance premiums.

4) Courts Already Scrutinise Legal Fees

The Courts already have two opportunities to scrutinise the fees of clinical negligence solicitors during the legal process of the claim. The Court is already therefore ensuring that these fees are reasonable and proportionate to the claim on a case-by-case basis. The government’s proposal suggests it is not confident that judges are capable of undertaking this task. If this is the government’s belief it is important that this is expressly stated.

5) Proposals Should be Overseen by Ministry of Justice, not the Department for Health

The proposed changes should be overseen by the Ministry of Justice, not the Department for Health. In the vast majority of clinical negligence compensation cases, the Department for Health is the defendant. This means that the organisation that will benefit from the proposed changes is the same organisation presiding over their introduction, providing for a significant risk of bias in decision making. The lack of independent scrutiny and the obvious conflict of interest is of grave concern.

6) Proposals Only Consider Value of Compensation

These proposals wrongly only consider the value of the compensation. They do not consider:

  • the non-monetary value;
  • the complexity of the litigation;
  • any additional work generated by poor conduct during the litigation process; and
  • any wider factors involved in the proceedings, such as reputation or public importance.

Blackwater Law Will Continue to Lobby Against the Cap on Clinical Negligence Legal Fees

The clinical negligence solicitors and staff at Blackwater Law see first-hand the devastating impact of clinical negligence on the lives of individuals and families. It is for this reason we are committed to ensuring that access to justice in cases of clinical negligence is not placed beyond the reach of the majority of the public that simply and reasonably expects to receive an appropriate and consistent level of care.