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A fixed fee for low value negligence claims – will it restrict access to legal advice?

Jenny Ray

7th March 2018

The idea of introducing a fixed cost to low value negligence claims seems like good news – one that would save both the NHS and the Department of Health money  – but there’s concern that it will threaten access to justice, particularly for those on a low income who can’t afford to pay legal fees. 

A year ago the government held a consultation and now the Department of Health and Social Care has published its response. It has announced plans to go ahead with introducing fixed costs in clinical negligence cases with a value of less than £25,000. However, the charity Action against Medical Accidents (AvMA) has questioned whether the government has taken full account of the consultation, or intends to go ahead with fixing fees as a short term cost-cutting exercise, rather than a means of establishing better patient safety and access to justice.

What sounds like a fairer system on paper has raised a raft of concerns from the Law Society, the Association of Personal Injury Lawyers (APIL) and various patient charities, including the AvMA. As patient safety is the underlying priority, they have raised three main issues:

  • the new system must allow lawyers to deal with cases properly, as low value cases can still be complex.
  • There should be measures to ensure NHS Resolution deal with cases more efficiently.
  • if the fixed fees are too low, no lawyers will take cases with a value under £25,000, therefore limiting access to justice.

The argument continues that the real way to save costs is to improve patient safety before a claim has to be made and to fix the current system. The current way in which NHS Resolution respond to claims is considered dysfunctional by APIL, and they warn that trying to impose fixed fees cannot work unless it is rationalised.

This would include an end to the all too common practice whereby the NHS denies any liability in cases where, after very lengthy investigations and sometimes years of delays, it becomes clear that negligence should have been admitted at an early stage.

The consultation concluded that many of the respondents were opposed to the fixed fee. An alternative involves looking at the reasons legal costs are so high and attempting to drive costs down, such as encouraging early exchange of expert opinion and early admissions of liability and reducing the length of time it takes to recover medical records.

Associations will continue to put pressure on the government to make sure they take the time to get the process of fixing costs right. Otherwise, it’s feared, the victims of clinical negligence will not get access to the proper course of justice. 

Do you need to talk to us about a Clinical Negligence claim?

Although the results of the working party won’t be made available until the autumn, we can talk you through the process as it stands. And we’ll follow up this post with our opinion on the results later in the year.

Please give the team a call on 01273 324041or email enquiries@griffithsmith.co.uk


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