the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Lords insist on amendments to LASPO

The Legal Aid, Sentencing and Punishment of Offenders Bill (“LASPO”) has now reached the “Ping Pong” stage, during which time the Bill will be batted back and forth between the two Houses, until both Houses agree on the text. From the point of view of PI practitioners, two important amendments are being sought by the Lords. The first is that people should have access to legal services that "effectively meet their needs". The duty is subject to resource limitations; it therefore ensures that, so far as budgets allow, access to justice will be maintained. This amendment had its origins in a recommendation tabled by a number of Lords, including Lord Faulks of 1 Chancery Lane. The second amendment exempts asbestos victims from the new "no win no fee" regime. Lord Alton, a former Lib Dem MP, is quoted in the Guardian as saying that it is wrong to use people suffering from mesothelioma to help to push down lawyers' costs. "I suspect when you are dying, especially when you are dying from an excruciating and debilitating disease, you may have other things on your mind than watching the lawyer's clock.” For more information on the progress of LASPO, see http://services.parliament.uk/bills/2010-11/legalaidsentencingandpunishmentofoffenders.html

Mind the Gap!

At least you know where you are with the NHSLA. The same is true of the various medical defence organisations. Can the same be said for the new regime proposed under the Health and Social Care Bill (HSCB)? If there are gaps in the indemnity arrangements for NHS care, what does this mean for claimants and defendants? On Friday (24 February 2012) the Department of Health (DOH) issued a short guide for providers of NHS-funded services outlining the proposals in the HSCB. Guide for Providers According to the guide the HSCB “establishes a comprehensive, proportionate and robust legal framework for sector regulation to protect patients’ interests”. NHS services will continue to be delivered by a “mixed economy of public, independent and voluntary sector providers”. A joint licensing regime, applicable to “all providers of NHS services” will come into effect for foundation trusts in January 2013 and other providers from April 2013. The guide also refers to the basis of pricing and payments for “independent sector providers, charities and social enterprises”. What is not clear from the guide is how it is proposed to ensure that these new “providers” have and in keep in place adequate insurance for the care which they provide to NHS patients. If, as the current draft of the HSCB would suggest, there are gaps in the indemnity arrangements for NHS care, claimants may face difficulties in obtaining compensation for substandard care and defendants will be operating with uncertainty over who is liable for what under the proposed new regime. The recent problems with PIP breast implants illustrate what happens when responsibilities become blurred. The danger is that with the HSCB encouraging numerous new “providers” of health care services across both the private and voluntary sectors, there will be confusion when things go wrong. Even if a potential defendant can be identified the HSCB does not at present require new “providers” to meet pre-set indemnity levels. What is to happen if a “provider” is under-insured or goes out of business as some clinics have threatened to do in relation to PIP breast implants? Is there then a claim in negligence against “the commissioning consortia” which may be an individual general practitioner arising out of the original referral? The HSCB still has some way to go to provide the certainty that both claimant and defendants will require if the proposed new regime is to gain the confidence of both. For lawyers faced with increasingly shrill demands to reduce both time and costs, any additional delay in establishing who is responsible and whether adequate indemnity or insurance arrangements are in place will be equally unwelcome. The legal advice from the outset on both sides must be to “mind the gap”.

"I never knew that ....!"

    The Freedom of Information Act (FOIA) 2000 is an important piece of legislation. Correctly used, it can bring into the public domain information that would otherwise be unknown to the general public. Yesterday (31 January) it led, indirectly, to the revelation that the James Bond villain that Michael Gove, the Education Secretary, would most like to be is Sir Hugo Drax in Ian Fleming’s novel “Moonraker”. The Education Secretary was answering questions by MPs (and the public via Twitter at #AskGove) during a session of the Education Select Committee. In the course of his evidence, Mr. Gove also revealed that he has not yet complied with the guidance from the Information Commissioner last month that private e-mails which discussed official business were subject to the FOIA 2000. Mr Gove told MPs that he was “awaiting fresh civil service advice” before complying. Mr. Gove was clearly too busy discussing with the Education Select Committee how James Bond, with the help of Special Branch agent Gala Brand who became C.I.A agent Dr. Holly Goodhead in the film, sabotaged Drax's “Moonraker” missile launch to know that on Monday (30 January) the Information Commissioner's Office (ICO) had released a new and, I think, very helpful plain English Guide to help public authorities better understand what the FOIA 2000 says and how to apply it in practice. http://www.ico.gov.uk/for_organisations/freedom_of_information/guide.aspx In 56 pages the guide looks at the law in a sensible and straightforward fashion and explains in simple terms what public authorities and organisations need to do to comply, including how to respond to requests and decide what information they should routinely publish. What is, I think, particularly useful is that the guide answers many frequently asked questions and gives practical examples to illustrate how to apply the FOIA 2000 in practice. For any busy practitioner who is currently trying and failing to get answers from a public authority, I recommend simply forwarding the guide to the person dealing with his or her request. It is surely just a coincidence that yesterday (31 January), the day after the ICO published its new guide, the government issued a 133-page memorandum to the Justice Select Committee containing its “Post-Legislative Assessment of the (FOIA) 2000”. http://www.justice.gov.uk/downloads/publications/policy/moj/post-legislative-assessment-of-the-foi-act.pdf The memorandum sets out the government's position on what it considers to be the primary concerns about the FOIA 2000 and concludes that “the Government’s commitment to transparency stands alongside its commitment to reduce regulatory burdens. A question worthy of consideration is whether the current FOIA regime strikes the right balance between those two objectives”. The fate of the FOIA 2000 is thus uncertain unlike that of Drax who, as film goers will recall, was fatally wounded by Bond’s poison dart wrist watch before being escorted into an airlock and ejected to die in space.  

Cutting legal aid in clinical negligence cases will cost the taxpayer

The Legal Aid, Sentencing and Punishment of Offenders Bill returned today to the House of Lords for its second day in committee. On the previous occasion, peers, including our very own Lord Faulks, made clear their view that the Bill is unacceptable in its current form. One hopes that today their lordships considered those sections of the Bill aimed at removing legal aid for clinical negligence cases.    The Government is seeking to save £10.5 million by this proposal. However financial analysis carried out by Kings College London estimates that the knock-on costs to the Department of Health via the NHSLA would outweigh these predicted costs savings (see http://www.kcl.ac.uk/content/1/c6/08/81/08/UnintendedConsequencesFinalReport.pdf). The analysis identifies four sources of knock-on costs, namely: The ATE premium for expert fees and reports; The 10% increase in damages to fund ‘success fees’ under the Jackson reforms; Costs generated by claimants who “give up” seeking justice, for example increased welfare payments, medical treatment and lost output; and Costs defending spurious actions no longer weeded out by the legal aid screening process, which would not be recoverable under the proposed system of Qualified One-way Cost Shifting.   Based on the report’s estimates, the Bill would generate a net loss of approximately £18 million per annum. Though an estimate, this is currently the only figure available. In evidence to the Justice Select Committee, the Ministry of Justice admitted that it had not analysed the impact of the proposals on other Departments. We wait to hear if the economic case against cutting legal aid in this area has been made in the committee session today.  

Government U Turn on the office of Chief Coroner

Those of you who have any regular involvement in or contact with the coronial process will no doubt have shared my sinking feeling when it was announced during the bonfire of the quangos that the office of Chief Coroner was not going to be implemented.  I was surprised and pleased to see that yesterday Ken Clarke announced a u-turn on this issue, although in limited form. The background to this development is that the Coroners and Justice Act 2009 provided for the appointment of a Chief Coroner and Deputy Chief Coroner.  The purpose of these roles was to provide national leadership for the coronial system in England and Wales, with aims to improve standards.  The Chief Coroner was also intended to provide a new route of appeal from inquests, removing the cumbersome and expensive requirement to judicially review decisions, however small.  In October 2010 the government announced that, in the current economic climate, plans to implement the office of Chief Coroner would not proceed.  The government proposed to abolish the office of the Chief Coroner and to transfer some of the Chief Coroner’s functions to alternative bodies.  The Public Bodies Bill was the means by which it was intended that the office would be abolished, although the provision enacting this power was defeated in the House of Lords in December 2010.  Thereafter the plan became not to abolish the office, but to provide that the functions could be transferred elsewhere.  The plan not to enact the office of Chief Coroner has been very unpopular and heavy opposition has been mounted by charities such as the Royal British Legion.  Yesterday Mr Clarke said in a statement: "Over recent months I have listened to and reflected on the concerns raised across Parliament, by families and by other groups, including the Royal British Legion, that a single figure needs to be responsible for the coroner system. "I am prepared to have one last try to meet those arguments and so have taken the decision to implement the office of the chief coroner. "The existing mechanisms for challenging a coroner's decision will remain in place and will avoid the need for expensive new appeal rights. The new post will be focused on working to deliver the reform to coroners' services that we all want to see and which I previously argued should be delivered by the Lord Chief Justice and myself. "Everyone is agreed that the priority is raising the standards of coroners' inquiries and inquests to ensure that bereaved families are satisfied with the whole process. "I am therefore giving the chief coroner the full range of powers to drive up standards, including coroner training, as well as setting minimum standards of service through the new Charter." So... partial good news then.  The central oversight of the coronial system that is so desperately needed will be implemented.  Unfortunately however, we are stuck with JR for the foreseeable future as the route of appeal against controversial decisions.   

Warning - Potholes!

My morning commute was brightened up this morning by an article in the Metro, (the staple free newspaper for London commuters,) entitled “Motorists sign up to a pothole warning drive”. I think the last word of the title should have read “Sign”. The article focused on a triangular warning sign depicting a lopsided rear view of a car with one wheel down a pothole. It is suggested the Department of Transport is being lobbied by Confused.com to introduce the dedicated sign for use on potholed roads.   The first thing I (and I would assume, many of my fellow commuters) thought, was “Aha! What about section 58(2)(e) of the  Highways Act 1980?” Certainly I thought that the use of such a sign could potentially raise some issues as to a highway authority’s special statutory defence pursuant to section 58 to a claim brought against it pursuant to section 41 of the same Act.   Would such a permanent sign be a factor the court should take into account pursuant to section 58(2)(e) (which concerns warning notices) in relation to the court’s assessment of whether the highways authority had in place a “reasonable” system of highways inspection, maintenance and repair?   My inclination is that the answer to that question is “absolutely not”, given that it would then be possible for a highways authority to place ‘Pothole Warning Signs’ at 25 yard intervals along all their roads; sit back and spend their highways budget on something else; and pray in aid their sign’s presence as a section 58 defence in any ensuing court actions against them for non-repair. In any event, surely the presence of such a sign could be described as akin to an admission by the highways authority of a failure to repair and thus a breach of section 41 of the 1980 Act.   However in borderline section 58 defences, the presence of such a sign may provide a tipping point for the court. Likewise it may have a bearing on a finding of contributory negligence?      

Scotland the Brave?

The Scottish government has announced (20 February 2011) that its plan to reform the system of NHS compensation claims in Scotland has been backed by a panel of independent experts.   http://www.scotland.gov.uk/News/Releases/2011/02/18132915   The No-Fault Compensation Review Group set up by the Health Secretary in 2009 and headed by Professor Sheila McLean, an expert in law and medical ethics, has now recommended changing the current adversarial court system to one of no-fault compensation.   The proposed new system would still require proof that harm was caused by treatment but would remove the need to prove negligence.   The review group suggests more patients could have claims resolved under such a system than currently achieve resolution through the courts. Interestingly the group also considers that the costs of the scheme would potentially be the same as the NHS currently pays in compensation and legal fees.   No-fault systems are already in place in Sweden, New Zealand, Finland, Denmark and Norway and parts of the United States but this is the first time that such a scheme has been proposed in the UK. Whether the scheme will in fact be implemented will depend on whether the Scottish Health Secretary, Nicola Sturgeon, can get the proposal through the Scottish Parliament. We will now have to wait and see, in the words of the famous Scottish song, how   “ … Brave are the hearts that beat Beneath Scottish skies…..”  

Lord Woolf Warns of Human Rights Conflict

Whatever your views about the Human Rights Act 1998 ("HRA"), most lawyers would admit that it has led to many interesting developments in the law, although not as many as were feared as we approached the turn of the century and the Act coming into force.  The approach of the courts in this jurisdiction has, for the most part, been reasonably restrictive although it is clear that in the arena of public and administrative law in particular, the HRA has had a pivotal role in shaping the law. For many personal injury lawyers the HRA impacts little on day to day practice, save for ticking the box on various court documents to confirm that there is no human rights issue in a claim.  Equally, whether one acts primarily for claimants or defendants, the HRA has an influence that cannot be ignored.  For example, the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004] AC 182 has changed not only the conduct of inquests where Article 2 of the European Convention on Human Rights ("ECHR") is engaged.  As coroners have become more used to conducting wide ranging inquiries and giving narrative verdicts the scope of even traditional inquests has expanded.  Further, if one acts for or against public bodies, an almost inevitable occurrence at some time during the career of most personal injury lawyers, the scope of the duty of care and the obligations owed by agents of the state to individuals in certain areas have also been influenced by the courts' recognition of Convention rights.  It has been well publicised that the government is considering the future of the HRA both as a result of longstanding policy objectives and also following dissatisfaction in some quarters about the influence of the Convention on difficult issues such as prisoner voting rights and whether those on the sex offenders register should have a right to appeal to have their name removed after a certain period of time.  David Cameron has announced an intention to set up a Commission to consider whether a UK Bill of Rights should be introduced. On Monday Lord Woolf, Lord Chief Justice from 2002 to 2005, was interviewed on Radio 4's Today programme.  Although Lord Woolf made it clear that he did not take issue with the setting up of a Commission to consider the issue of human rights, he warned: "We have got a stark option: either we accept the European Convention, or we don't accept it and decide to leave the Council of Europe. It's very difficult to do what [Justice Secretary] Mr Clarke indicated he would like to do when he's chairman of the relevant body, because there are 47 signatories in Europe which are signatories to the European Convention as well as ourselves. To try and amend that is a virtually impossible task...  If you have a further convention - a British convention [the Bill of Rights] - there's going to be a complication in the position, because you're going to have two conventions to which the courts are going to have a regard." Whatever one might think about prisoner voting rights and the sex offenders register, it is easy to anticipate that emotive issues such as these will lead to strong and often polarised views.  Further, whether one is for or against the influence of the ECHR within the UK, one can see that difficult issues such as these do not make a good platform on which to base a discussion about the influence of the HRA on UK law over the last decade.  The incremental and often restrictive approach of the courts in allowing HRA arguments to expand the law much beyond our pre-existing common law receives little attention in the media.  In addition the cases where the HRA is relied on to expand the rights of "the good" rather than "the bad" also usually do not make good press.  An objective and carefully considered discussion about the influence of the HRA, good and bad, across all areas of law over the last decade should be welcomed by all.  Ten years is a reasonable period to enable proper reflection on quite what impact the HRA has had.  However, one cannot help but wonder whether politicians should be reminded not to base that discussion and consideration primarily on hard and topical issues such as prisoner voting rights and the sex offenders register.  After all, at law school most students are taught the old adage: hard cases make bad law.  It seems equally likely that over reliance on hard issues can give rise to bad politics too. 

Emergency Services: Liability under the Human Rights Act

Following Lord Young’s report, personal injury funding is likely to be reduced and, as a consequence, claims under the HRA against emergency services may become more frequent, according to Edward Bishop who recently spoke on the topic at the Personal Injury Bar Association Winter Conference. One advantage of the HRA is that, in contrast to the common law, which adopts different approaches to different emergency services as regards the question of whether a duty is owed, the HRA treats the question more consistently. Section 6 of the HRA provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right. A number of convention rights may be relevant to actions against emergency services, including: a)      Article 2: Right to Life; b)      Article 3: Prohibition of Torture, Inhuman and Degrading Treatment; c)       Article 5: Right to Liberty and Security; and d)      Article 8: Right to Respect for Private and Family Life. The extent of the duties owed under the HRA was explained in Osman v UK ((2000) 29 EHRR 245). At paragraph 116 the Court held: bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources […] it must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual […]  from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. However, as Edward highlighted, although the HRA provides a more consistent approach, it may also pose a number of difficulties for claimants. These include the following: a)      The Osman test is more difficult to satisfy than “ordinary” negligence, as explained by Baroness Hale in Savage v South Essex Partnership NHS Foundation Trust ([2008] UKHL 74 at paragraph 97); b)      There is no liability under the HRA for clinical negligence (Powell v United Kingdom (2000) 30 EHRR CD 362); c)       The claimant must be someone who “is (or would be) a victim of the unlawful act” (section 7(1) of the HRA); and d)      The limitation period for HRA claims is one year (section 7(5) of the HRA). Although this is likely to be extendable pursuant to section 33 of the Limitation Act 1980.