§ 5.39 p.m.
§ Lord Falconer of Thoroton rose to move, That the draft regulations laid before the House on 16th December 1998 be approved [Fourth Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, the purpose of the draft Legal Aid (Prescribed Panels) Regulations 1998 is to establish the Clinical Negligence Franchise Panel as a prescribed panel for the purposes of Section 32(7) of the Legal Aid Act 1988.
§ Section 32(1) of the Legal Aid Act 1988 creates a general right for a person receiving advice or assistance or representation, to select the legal representative to advise, assist or act for him from among the legal representatives willing to provide advice assistance or representation under the Act. That right may be qualified under regulations made under Section 32(7), so that the person receiving assistance may only select from legal representatives who are for the time being members of a prescribed panel. These regulations give effect to the decision announced by my noble and learned friend the Lord Chancellor on 16th July 1998 in his written reply to the noble Lord, Lord Burlison, following the response to his consultation paper Access to Justice with Conditional Fees.
§ I turn now to the regulations. Regulation 1 provides for the way in which the regulations are to be described and the date on which, subject to parliamentary approval, they are to come into force; namely, 1st February 1999. Regulation 2 provides interpretation of important terms used in the regulations. I do not wish to go through them, but it may at this point be convenient if I briefly mention that the term "clinical negligence" has been used in preference to the more usual "medical negligence", because the word "clinical" encompasses all members of the medical and clinical services, including other health professionals such as radiographers, dentists and nurses. It is, therefore, more accurately descriptive of negligence claims brought against health professionals.
§ Regulation 3 establishes a panel of authorised litigators, which is to be called the clinical negligence franchise panel. This will be comprised of those litigators who hold a franchise contract with the Legal Aid Board. A condition of holding a franchise contract will be that the firm contains a solicitor who is a member of the Law Society's medical negligence panel of the Association of Victims of Medical Accidents' panel.
§ Regulation 4 sets out the scope of the regulations in relation to particular types of claim; it limits the right of an assisted person to select a representative under Section 32(1) of the 1988 Act, which I have already mentioned; and makes clear that other powers enjoyed by the board to limit representation for civil legal aid pursuant to a contract are not affected by these regulations.853
§ The establishment of the clinical negligence franchise panel continues the Government's reforms of legal aid. An essential element of the reforms is to direct legal aid funding to those who need it most and to do this through providers of legal services who have demonstrated a recognisable standard of administrative efficiency and specialist expertise. All firms which wish to obtain a clinical negligence franchise must, therefore, satisfy the Legal Aid Board's franchise quality assurance standard and have, as a member of that firm, a solicitor who is also a member of one of the two accredited panels that I have already mentioned.
§ I think that there is almost universal agreement in the profession that medical negligence cases require a particular expertise. Success in clinical negligence cases rests on specialist expertise. Specialist expertise is achieved through experience. Experience is gained by practice. Firms which take on only one or two clinical negligence claims a year are unlikely to have the same levels of experience and skill as a firm which takes a number of cases per week. That is perhaps demonstrated by the fact that the results obtained in cases funded by legal aid demonstrate conclusively that lawyers who are members of the Law Society or the AVMA panel (the Association of Victims of Medical Accidents) achieve better results. They not only win more cases, but they also obtain better results; for example, in 1996–97 cases run by panel members achieved an average sum of damages of £48,500 compared with only £21,800 for non-panel member lawyers.
§ Directing clinical negligence claims to only those franchised firms with a contract will not reduce access. There will be an adequate number of contracts granted to enough firms to ensure that the expected number of clinical negligence claims (around 6,000 a year) can be dealt with. In areas of the country where there may be few franchised firms with contracts, it will be a condition of the contract that, where necessary, solicitors will travel to meet and take instructions from their clients.
§ I should point out that the establishment of this panel will not mean that no new lawyers can enter this field of litigation. The requirement is that the firm holding the franchise must have a panel member as the supervisor of the franchise. Lawyers joining that firm will be able to gain experience in a contracted firm, and achieve accreditation to one of the panels. Subject to meeting the franchise standards, they will be able to obtain contracts and be included in the prescribed panel.
§ There will be a comprehensive publicity campaign to bring to the public's attention the new category of clinical negligence and where and how they can obtain the advice and assistance that they need. Posters and leaflets are being produced to explain to the public the need to see a solicitor who is a member of the panel. That information will be made available in libraries and other public places as well as in citizens advice bureaux, law centres and other legal advice agencies. The leaflets will also inform people about the Legal Aid Board's "phone in" service, which is being provided free of charge and will provide information on which solicitors' firms have clinical negligence contracts. In addition, 854 solicitors themselves are being informed of which firms have gained contracts so that they can refer potentially new cases to them.
§ From 1st February those on the panel will be granted contracts to undertake work on behalf of assisted persons with clinical negligence cases. After that date, and subject to an exception that I will come to, only firms on the panel will be able to conduct these cases. The exception is in respect of the 2,000 firms which currently have a franchise contract to conduct personal injury cases, which has until now included clinical negligence work. They will be entitled to continue to work on new clinical negligence claims but only until 31st July, by which time they will have needed to qualify for a clinical negligence franchise.
§ Moved, That the draft regulations laid before the House on 16th December 1998 be approved [Fourth Report from the Joint Committee].—(Lord Falconer of Thoroton.)
My Lords, the noble and learned Lord has given us a fairly full explanation of the regulations and I am sure that we are all grateful for that fact. However, perhaps he will enlighten us on two matters. First, we need to know more about the nature of the membership of the panel. If it were to consist largely of lawyers that would not help. Those appointed need to be people who have clinical expertise—that is to say, medical, dental and nursing expertise. I say that because the decisions they will have to take will, I believe, require such expertise. Therefore, can the noble and learned Lord give us some idea of the sort of people who will be chosen to serve on the panel? Secondly—and I only infer this from what he said—but will the noble and learned Lord be more specific and say how long it will be before the panel is appointed?
§ Lord Kingsland
My Lords, the Opposition give a qualified welcome to these regulations. We entirely accept that it is important for the country that cases of the complexity of clinical negligence cases receive the best possible specialist advice available.
In drafting the regulations, I note that the Government have relied heavily on two statistics. The first is that in 1996–97 the average claim litigated by specialist solicitors, who belong to one or other of the two specialist associations, yielded £48,000; and the second is that two-fifths of the cases which were begun by solicitors operating under legal aid did not conclude either in settlement or in a successful outcome as a consequence of litigation.
I ask the noble and learned Lord to look at those statistics very carefully if he is to use them as a basis for developing the system set out under the regulations. As far as concerns the average figure of £48,000, one would expect specialist solicitors to deal with the more complicated and higher-yielding cases. Therefore, I am not at all surprised to learn that specialist solicitors litigating in clinical negligence cases obtain a much higher return for their clients than solicitors who litigate negligence cases, in general. One would expect ordinary personal injury solicitors to be instructed in clinical negligence cases of less importance.
855 As regards the figure of two-fifths, one of the reasons why a large number of clinical negligence cases do not end either in settlement or in court actions is that, in many instances, there has to be a big initial investment of money before a legal adviser is in a position to assess risk. In my judgment, the figure of two-fifths is not at all out of the ordinary. I hope that the Government are not reading too much into it.
Having said that, your Lordships' House should support the intention behind the regulation. I express concern only about the fact that there seem to be so few specialist solicitors available at the moment to deal with clinical negligence cases. I also express concern that the geographical distribution of these solicitors is so uneven. I understand that there are only 20 properly qualified solicitors in Wales and hardly any in the East Anglian area. Either the experts will have to travel a long distance to meet the victims or the victims will have to travel a long distance to meet the experts. I am sure that the noble and learned Lord has given this due consideration. I hope that he will be able to reflect further upon this matter before the end of this debate.
§ Lord Falconer of Thoroton
I am grateful for the support from the noble Lord, Lord Kingsland.
Let me first deal with the point made by the noble Lord, Lord Renton. In effect, these regulations limit the firms of solicitors who can obtain legal aid for the purpose of medical negligence cases. They do not set up any sort of adjudicatory panel; they simply identify that you can get legal aid for a clinical negligence case only if you are on the panel that the regulations set up. The suggestion by the noble Lord, Lord Renton, about having non-lawyers on the panel is not quite the point of the regulations. The date on which the panel comes into force is 1st February 1999.
The noble Lord, Lord Kingsland, made the point that we should not set too much store by the two statistics that were relied on—namely, the result or success rate as between those who will become the panel and those not on the panel—and we should not set too much store by the size of the damages because you would expect the more experienced lawyers to be doing the bigger cases.
One should not look at any statistic in isolation; one should look at the whole picture. Applying the existing panel as a guideline for the firms that will be on the panel, they achieve success in 28 per cent. of the cases they are involved in; those not on the panel achieve a rate of success in either 17 or 18 per cent. That is quite a significant statistic. I take the point of the noble Lord, Lord Kingsland, that one should not be too influenced by the amount of damages recovered, but again it is of significance.
The statistics support one's own instincts. Medical negligence cases are very difficult and involve great sensitivity both in the assessment of evidence and in dealings with clients. It would be much better if people of experience conducted these sort of cases. It is not surprising that the statistics tend to support the view that those who have experience tend to get better results. 856 One's instincts and also statistics tend to support these regulations. In those circumstances, I commend the regulations to the House.
§ On Question, Motion agreed to.