Until April 1st 2013, clinical negligence was the one area which was exempt from the general abolition of legal aid for claims relating to personal injury or death: see Sch 2 para 1(a) of the Access to Justice Act 1999. In 2010, however, the gov-ernment suggested in Proposals for the Reform of Legal Aid in England and Wales (Ministry of Justice, Consultation Paper CP12/10) that legal aid should be abolished: para 4.163ff. It was said that the availability of conditional fee agreements made it unjustifiable to retain clinical negligence within the scope of civil legal aid.
As introduced, the Bill followed this proposal. By Sch 1 Part 2 para 1 to the Bill, "civil legal services provided in relation to personal injury or death" were excluded from the new legal aid scheme, whether the injury or death was attributable to clinical negligence or some other cause.
This uncompromising stance came under attack in the House of Lords. First, two amendments were made which required the funding of medical reports, and providing for continuing funding of cases involving children. Amendment 216 was the response and provided for a more tightly-drawn continuation of public funding in a limited category of cases. It was this provi-sion which eventually became Sch 1 Part 1 para 23 to the Le-gal Aid, Sentencing and Punishment of Offenders Act 2012. The new restrictions generally do not apply to any case in which an application was made for funding before April 1st 2013: see SI 2013/534.
The text of sub-paras (1) to (3) is as follows:
(1) Civil legal services provided in relation to a claim for dam-ages in respect of clinical negligence which caused a neuro-logical injury to an individual ("V") as a result of which V is se-verely disabled, but only where the first and second conditions are met.
(2) The first condition is that the clinical negligence occurred—
(a) while V was in his or her mother's womb, or
(b) during or after V's birth but before the end of the following period—
(i) if V was born before the beginning of the 37th week of preg-nancy, the period of 8 weeks beginning with the first day of what would have been that week;
(ii) if V was born during or after the 37th week of pregnancy, the period of 8 weeks beginning with the day of V's birth.
(3) The second condition is that—
(a) the services are provided to V, or
(b) V has died and the services are provided to V's personal representative.
Sub-para (5) contains some definitions, but it can be seen that a number of points of interpretation arise under this provision and advisers need to be aware of the scope for argument. Little was said by the government minister in the Lords which assists with these issues of interpretation: see Hansard (HL) March 7th 2012 col 1841-1844. The new Legal Aid Agency has not yet issued any sort of guidance as to which cases will qualify and so those administering applications for funding and considering appeals against refusals of funding will be inter-preting para 23 from scratch.
"Clinical negligence" is defined in sub-para (5) as a breach of duty or trespass to the person "committed in the course of the provision of clinical or medical services". It is suggested that the breach of duty need not relate just to the administration of treatment, but would extend to cases where an infant was dropped, or where a piece of medical equipment fell onto the infant or its mother while they were undergoing treatment. On one reading, it could even extend to cases where a mother undergoing treatment slips on a wet floor in a hospital and there is a breach of the Occupiers’ Liability Act 1957, but it would seem unlikely that such a wide interpretation could be correct.
Next, under sub-para (1), the victim must have suffered a "neurological injury". Effectively this means an injury to the nerves or nervous system. There is nothing to say that the neurological component of the victim’s injuries must be either the sole or even the most serious element of the injury suf-fered by the victim. Nor is it restricted to injuries to the brain, which was the paraphrase used by the minister during the House of Lords debate.
Thirdly, the victim must be "severely disabled". It is confirmed in sub-para (5) that "disabled" covers both physical and mental disabilities but other than that the phrase is left undefined. The word "severely" will have to be accorded appropriate weight, but there must be plenty of scope for debate as to the types of loss of amenity which will suffice.
Fourthly, the severe disability must be "a result" of the neuro-logical injury, which itself must be "caused" by the clinical neg-ligence. On ordinary principles, neither the clinical negligence nor the neurological injury is required to be the sole cause of the resulting disability, provided that it makes a significant con-tribution.
The final point relates to the timing of the injury, as defined in sub-para (2). Broadly, the injury must occur prior to or at the time of birth or within eight weeks of birth (or, where the infant is born before 37 weeks, within eight weeks of the expected date of birth). It is not therefore a requirement that the injury has been suffered during birth, although no doubt such cases will continue to be the majority of cases falling within the new provision.