From April 2013, public funding, (formerly known as legal aid) for clinical negligence claims will only be available to those who have been injured during pregnancy, labour, or the first eight weeks of life irrespective of whether they meet with the other specified criteria or not.

Until the beginning of this week, it was the intention of the Ministry of Justice (MOJ) to impose a Supplementary Legal Aid Scheme (SLAS). The purpose of this scheme was to take a levy of 25% of damages for pain, suffering and disability and for financial losses already incurred from the clinical negligence compensation of brain injured babies (who remain in scope for legal aid from April 2013). The intention was that this money would be ploughed back into the Legal Aid Fund and would assist in supplementing the cost of other legally aided cases. The MOJ hoped that the plan would recoup some of the £2 billion a year spent on legal aid in England and Wales, most of which relates to criminal cases. It was also suggested that the MOJ believed that the recoupment of damages would affect 5,000 families every year and would deter other claimants from applying for public funding, thereby further reducing the legal aid bill.

AvMA (Action against Medical Accidents) is a well known medico legal charity providing advice and support for many individuals who have suffered as a result of medical negligence. They were incensed by the Supplementary Legal Aid Scheme proposals and decided to set up a petition asking the MOJ to scrap this. Peter Walsh, Chief Executive of AvMA stated:

“in effect [this SLAS] is an extra tax on the most vulnerable and deserving victims in society and would make it unrealistic to take cases forward on Legal Aid, making a mockery of the so-called concession made to leave these cases “in scope” for Legal Aid. In other words it is as good as scrapping Legal Aid for all clinical negligence cases through the back door”.

The AvMA petition was signed by 366 people as at 24 September 2012 and the Ministry of Justice has now announced a decision to abandon the scheme. An MOJ spokesman has been quoted as saying:

“Having carefully considered the views expressed in a recent stakeholder engagement exercise, Ministers have decided not to proceed with the implementation of the proposed Supplementary Legal Aid Scheme in April 2013.”

However, the Ministry of Justice does not rule out such a scheme as an option for the future as suggested in a letter to stakeholders which was sent out earlier this month.

Legal Aid is still hanging on and will continue to be available to those who have been injured during pregnancy, labour or the first eight weeks of life. It is for the MOJ to find an alternative method of funding those cases that have remained in scope. The initial scheme would have seen a quarter of the 25% of damages for pain, suffering and disability and for financial losses already incurred stripped from the damages award. This would have had a marked effect on these most deserving claims where every penny counts. Damages in the UK are far short of what they should be and awards should not be reduced to fund the cost of investigating another claim though legal aid at the claimant’s expense.

Fortunately it would appear that the Ministers at the MOJ recognised the vulnerability of these clinical negligence claimants and the reversal of the Supplementary Scheme is a success for claimants for the time being. It is the remaining Jackson proposals which still lead to uncertainty in civil litigation in 2013.