Fixed fee proposals for clinical negligence will have unintended consequences for patient safety, says AvMA

Action against Medical Accidents (AvMA) has warned that the Department of Health’s proposals to cap recoverable legal costs in clinical negligence cases could have serious unintended consequences for access to justice and for patient safety.

The charity for patient safety and justice has also questioned the timing of the proposals, which come before the outcome of a current review by the Ministry of Justice into the effect of the previous legal reforms through the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) has been seen.

AvMA is also dismayed that the consultation on fixed fees has been published before Lord Justice Jackson has finished looking into the very notion of fixed costs in civil litigation and the National Audit Office has concluded looking into the role of the NHS Litigation Authority in reducing legal costs.

AvMA chief executive Peter Walsh said: “The proposals as they have been explained so far would seriously harm both access to justice and patient safety.

“We are deeply disappointed that, against our advice, the Department has pressed ahead with these proposals without even waiting to learn about the impact of earlier reforms which are reducing costs.”

“We would never condone solicitors claiming over-the-top legal fees, but this is very rare and is already controlled by the courts. The NHS Litigation Authority is also able to challenge costs where there is a case for doing so. In our experience, high costs are usually a result of the NHS not investigating incidents properly and dragging out claims with unreasonable denials of liability. However, it seems the department has taken no account at all of defendant behaviour unnecessary escalating costs.”

Walsh added that AvMA would respond in detail to the consultation but said that based on what was known, the proposals would deny access to justice in some of the most serious cases, make the NHS unchallengeable, and prevent lessons being learnt.

“The human costs in these cases far outweigh the financial costs and are perfectly avoidable if patient safety is improved.”

Mark Dugdale