Mckenzie Friends: Improving Access to Justice in Clinical Negligence 2017 - Dr Mark Burgin
07/03/17. Dr Mark Burgin BM BCh (oxon) MRCGP considers the expert’s duty to the court when instructed by a Litigant in Person (LIP) assisted by a McKenzie friend.
The Woolf reforms (1) and LASPO (2) caused reductions in both the costs and the availability of legal advice, McKenzie friends (MF) provide for the claimant’s right to reasonable assistance. (3)
McKenzie friends can assist both the LIP and the court by ensuring that the forms are correctly completed and the claimant understands the legal questions and the behaviour that the courts expect.
LIP may expect their McKenzie friend to go beyond their role to act as an advocate, signing papers, speaking on their behalf and writing a statement.
McKenzie friends may face further ethical issues when asked to provide medical advice and should instead signpost where to obtain the answers to these questions.
All cases should start with a low cost generalist medical report which sets out the material issues, the breaches and the causation and recommendations.
Where ongoing disability has occurred a low cost Disability analysis report (DAR) allows the LIP to specify in precise terms the heads of claim.
The expert requires a copy of the claimant’s statement both to direct the attention to the relevant issues and to provide evidence of the claimant’s version of events.
Writing a statement puts the McKenzie friend in a challenging position as the claimant may not know how to explain what has happened or even become distressed when asked to write the statement.
An expert should be prepared to read the unstructured notes taken by the MF at the time of the initial contact with the LIP and identify the material issues from these notes and the medical records.
It may be necessary for the expert to examine the claimant in order to determine the medical issues in situations where the instructions and the medical records are not clear.
The expert should see the requirement to request clarification of instructions as an opportunity to challenge unreasonable expectations and ensure that all required documents are available. (4)
Filling in forms
Clinical negligence claims require the lawyer or LIP to take the medical report and rewrite it so that it answers the information required on the form and still make medical sense.
This can be challenging for an experienced clinical negligence lawyer and may be impossible for the LIP or McKenzie friend, medically unsound letters of claim cause problems to the court.
The experts overriding duty is to the court so that a medical expert’s report must address the need for the court to have correctly completed forms by providing clear reports.
The expert should be aware of the template letter of claim and the range and form of the information that is required to complete it so that they can correctly address the issues. (5)
The template asks for a chronology based on medical records, a summary of the case, list of the breaches, explain causation, describe condition and list recommendations for rehab and other expert reports.
Valuing the claim
Identifying the main heads of claim can be difficult when causation is complex so that valuing the claim for Part 36 offer impossible.
The medical expert can assist by listing those heads of claim that are causally linked with the breach and determine the likely proportion that would have occurred in any event.
For each head of claim the medical expert should consider whether the effect was of an annoyance value only or had mild, moderate or severe restrictions on the claimant’s functioning.
Disability analysis reports (DAR) uses a different technique to consider each functional restriction separately to allow linkage with specific causes and provide an estimate of severity. (6).
The expert should confirm that there is no chance that at some definite or indefinite time in the future the injured person will develop some serious disease or some serious deterioration in his physical or mental condition due to the accident. (7)
McKenzie friends have their origin in family law but now have a role in all civil cases where the litigant cannot afford or chooses not to have legal representation. (8)
Increasing digitalisation of the court process is likely to make it more straight forward for McKenzie friends to help improve access to justice in clinical negligence.
Rowe (9) raises concern when MF are ‘granted rights of audience and the right to conduct litigation’ because it ‘deprives claimants of the expert representation’.
As the importance of the McKenzie friend grows it is likely that a standard contract with a cap on the charges and clarification of the boundary with lawyers will be proposed.
Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.
Lord Woolf 1996 Access to justice
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Neuberger 2010 Practice Guidance: McKenzie Friends (Civil and Family Courts)
MOJ 2014 Guidance for the instruction of experts in civil claims part 23
MOJ Pre-Action Protocol for the Resolution of Clinical Disputes C2 Letter of Claim
Burgin 2015 Counting the Cost of Disability: Writing a Disability Analysis Report www.pibulj.com
N242A - Offer to settle (Section I - Part 36)
McKenzie v McKenzie: CA 10 Jul 1970
Rowe 2016 Reforming the Courts' Approach to McKenzie Friends www.pibulj.com