PI Brief Update

The Risks of a Fixed-Costs Regime for Clinical Negligence Cases - Catherine Dixon, Law Society Chief Executive

17/11/15. Risk is defined as, 'a situation involving exposure to danger'. In 2012 a study was published by Sir Bruce Keogh, the medical director of the NHS in England, highlighting the increased risk of death for patients admitted to hospital at weekends compared to a Wednesday. Keogh then published a report calling on the NHS to adopt 10 standards to improve the quality of care available at weekends.

The government's decision to prioritise the issue of seven day health services has led to a heated debate between the health secretary, Jeremy Hunt, and junior doctors. As the row over the government’s proposed new contract has intensified, both parties have successfully conveyed one clear message to the public: patients are at risk in healthcare settings whether seven day services are provided, or not.

The government is adamant that standards of care are currently not uniform across the week. Meanwhile junior doctors have argued that changes to their contracts to include evening and Saturdays up to 10 p.m. would have “grave implications” for patient safety.

The safety message was emphasised further in early November when junior doctors rejected the health secretary's last-minute pay offer and went ahead with a ballot for strike action. Responding to the move, a Department of Health spokesperson said: “Strike action always puts patients at risk".

The reality is that patients, who face risk in the healthcare system for a whole variety of reasons, are some of the most vulnerable and marginalised in society. These are the very same people who may be left without legal advice and representation if the Department of Health introduces a fixed-costs scheme for claimant solicitor fees.

The Department of Health’s response to reduce the cost of clinical negligence in the NHS is to target claimant solicitors’ costs by proposing to introduce fixed costs and cap fees to expert witnesses. Such a move would, more than likely, reduce the amount paid to specialist solicitors for representing those who have been harmed by negligent NHS care and may make it less likely that a claim will be brought – reducing the chance that a harmed patient will get redress.

The government insists that a fixed costs scheme will help to tackle the financial burden on the NHS arising from successful claims of clinical negligence. The fact is the introduction of fixed costs, especially if set too low, could seriously undermine the ability of people harmed by negligent NHS care to receive the specialist legal advice they need to obtain the compensation they are entitled to in law. A fixed-fees scheme could result in solicitors not being able to take on some cases because those cases are not economically viable.

When the Law Society responded to the government’s pre-consultation in early autumn we made it clear that the proposed changes are highly premature. We drew attention to the fact that the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which will significantly reduce costs, have not yet been fully quantified. We reasoned that measures to reduce legal costs through LASPO must be fully evaluated to understand their impact. Only then can any next steps be decided.

During the preparation of our pre-consultation response we sought the views of our members. A theme that featured in the hundreds of responses was the fact that there is no correlation between the value of a clinical negligence case and its complexity. There is a real danger that any fixed-costs regime based on value of claims would fail to recognise the amount of work required to deal with the nuances and complexities that frequently arise in clinical negligence cases.

We strongly argue that the government’s priority should be to reduce incidents of harm, rather than focus on reducing the legal costs incurred as a result of patients seeking the compensation they need to help them get on with their lives after suffering often devastating injuries.

The claims system plays an important role in ensuring that cases of clinical negligence are properly investigated. The government’s emerging proposals could seriously impinge upon access to justice and curb patients’ ability to pursue cases which are in the public interest. Patients who are harmed by negligent NHS care must appropriately compensated and problems with NHS care which often result in significant harm should be brought to light, lessons learned and crucial changes made within the NHS to prevent recurrence.

Proper representation takes time and requires access to medical experts. Our members have pointed out that the finances available under a fixed-costs regime might be inadequate to fund a proper investigation and that it may be impossible to pay for the expert reports that are essential to making a case.

Would ‘the best experts’, actually be willing to work for capped rates proposed by the government? Experts will only take on the work if they feel that the remuneration is adequate and reflects the complexity of the case and the specialist knowledge they provide. If their fees have to be ‘topped up’ by the claimant, this would effectively reduce the amount of compensation received by negligently harmed patients. Another reality is the number of experts required to establish breach of duty and causation of injury. This expert knowledge is essential in establishing what went wrong, and whether the care was negligent and resulted in harm to the patient. Claimant solicitors consider that there is already an uneven playing field in this area, with many arguing that any cap on fees must apply to expert costs on both sides.

Solicitors play an important role in screening cases and thereby significantly reduce the number of unmeritorious claims which would otherwise be brought against the NHS.

Our members are concerned that clinical negligence work will cease to be economically viable if a fixed-costs regime is introduced which fails to appropriately compensate claimant solicitors for the work they do in screening out unmeritorious claims. Without solicitors undertaking this screening, more cases could be submitted, increasing the costs incurred by the NHS.

Our members referred to the possibility that a fixed-fees scheme could lead to the reorganisation of some businesses so that more of the investigation would be handled by less-experienced staff in order to reduce costs. This could mean that key issues are missed. Worse still, if the levels are set too low for a reasonable job to be done for a reasonable return it would open the door for inexperienced practitioners to take on the work, which in turn is likely to produce a poor outcome for the client.

One particularly worrying theme that emerged time and again from our engagement with members was the disproportionate effect that the changes would have on access to justice for more vulnerable citizens. This is because loss of earnings is a major consideration in assessing the value of a claim. For example, claimants on low incomes, the disabled, people with mental health conditions, the elderly and children are much more likely to fall within the ‘lower-value’ claims bracket.

The most common category of cases where it was felt that a fixed-costs regime would be wholly inappropriate was in cases where there was a fatality. Claims for compensation in fatal cases are capped in value where there are no dependants. This means they would fall within the lowest suggested threshold referred to in the consultation.

We would be deeply concerned if incidents where someone has died as a result of negligent care are not properly investigated because a fixed costs scheme restricts solicitors from representing the deceased’s family. This also highlights the fact that the amount of compensation that may be awarded does not reflect the true value to those who have been harmed.

While we await the detail of the actual proposals we are asking solicitors to submit case studies to This email address is being protected from spambots. You need JavaScript enabled to view it. to help formulate our consultation response. We will continue to seek the views of practitioners as we await the launch of the formal consultation.

For the sake of the NHS and its patients, the Department of Health must listen to practitioners before moving forward. 

Catherine Dixon
Law Society Chief Executive

Image ©iStockphoto.com/dra_schwartz