Has the demise of Legal Aid put justice out of reach for ordinary people?

Medical negligence (or clinical negligence as it’s known) can be utterly devastating, not just for the victim, but for the family too. At a time when you should be able to put your trust in the doctors and medical experts taking care of your loved ones, you may be facing the consequences of life-changing events that should never have happened in the first place.

An additional issue is that since the changes to the Legal Aid system back in 2012, if you do want to engage a solicitor to bring a claim for medical negligence then you’re almost certainly going to have to pay for it (at least in England, Northern Ireland and Wales). That has put general claims out of reach for many people. However, do not panic as we can work for you under a conditional fee agreement (commonly referred to as a ‘no win no fee’ agreement). This means we will not charge clients if we cannot get you compensation. When we are successful a percentage may be deducted from your damages.

Holding a medical professional to account costs money. Medical negligence cases are, by their very nature, incredibly complex. To be able to bring a case a patient (or their family) has to prove that not only did the actions of the medical professional result or contribute to some injury to the patient, but they acted in a way that is below the expected standard for a professional in their position. To qualify for any kind of medical or clinical negligence claim, both parts of that equation have to be proven.

The Legal Aid and Sentencing and Punishment of Offenders Act 2012 removed the ability for many people to request Legal Aid for medical negligence claims. There are a few exceptions to this rule, but they’re very specific and primarily designed to help the families of children who have been injured during childbirth or pregnancy. Claims for neurological injury to children are still eligible for Legal Aid, but must meet one of the following criteria:

  • The negligence results in severe disability that will require extensive and lifelong care
  • The negligence occurred during pregnancy

Or:

  • The negligence occurred within 8 weeks of birth.

As harsh as it may seem, there is no provision for Legal Aid for any other type of medical negligence claim.

No win, no fee

However, we are willing to undertake these complex and lengthy cases on a ‘no win no fee’ basis. This means that you will only pay legal costs if you win your case. This can be a lifesaver for victims of medical negligence cases, but not all solicitors are willing to do this for long drawn-out cases where the fees outweigh the final award. It’s also worth noting that unlike the legal aid system, which required solicitors taking on medical negligence cases to have experience in dealing with such claims, now there is no mandatory requirement for your legal representative to have experience in medical negligence work beyond the usual qualifications to practice law. So, if a claimant needs someone to fight a clinical negligence case they may want to ‘shop around’ to find the best, most qualified and most experienced solicitor who is willing to take on the case on a no-win-no-fee basis.

So that’s it, then?

Not quite. There are other options available, such as making a written complaint or alternative dispute resolution, where a constructive solution can be reached without having to go to court. If there’s a clear case of negligence, then the representative for the medical professional may want to come to an amicable agreement with the patient and their family without the need for further court action.

So there are ways that if you have an injury or life-changing disability due to medical negligence that you can still access the legal system. So whilst the removal of Legal Aid for all but the most serious cases has had an impact, there are still routes to justice and financial compensation for those who need it.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Mark Wisby

Associate, Clinical Negligence

Mark is an Associate Solicitor specialising in clinical negligence and serious injury claims. Mark’s role is to investigate allegations of negligence including at inquests to...

Associate, Clinical Negligence

Mark Wisby

Mark is an Associate Solicitor specialising in clinical negligence and serious injury claims.

Mark’s role is to investigate allegations of negligence including at inquests to try and get his clients any additional help they may need and to recover for them the compensation they deserve. He guides his clients carefully through the litigation and alternative dispute resolution process always setting out clearly what the options are and which is the best one.

He has over 30 years’ experience of working for both claimants and defendants including working on secondment for a number of insurers dealing with s against employers’ liability, public liability, product liability and road traffic accident claims. He has over that time recovered substantial damages for his many clients including over £3 million for one of them.

Mark is a Fellow of the Institute of Legal Executives who qualified at the Inns of Court Temple as a solicitor in 2004.

Mark really listens to what his clients want to achieve and will always tries to ‘go the extra mile’ to secure a successful outcome.

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