By Ken Thomas, medical negligence specialist at award winning Harding Evans Solicitors.

Every year, millions of pounds are paid out by the NHS in Wales in respect of medical mistakes. Every year, hundreds of new claims are brought against the health service. Most of these are funded by the state by way of Legal Aid – now re-named Public Funding.

On 22nd July the Legal Services Commission - previously the Legal Aid Board – launched a Consultation Paper which may radically change Public Funding for medical claims. Titled “A New Focus for Civil Legal Aid”, one of its main aims is to discourage unnecessary clinical negligence litigation, that is keep matters away from the Court. There are three main proposals.

Firstly, there is to be greater reliance upon the Complaints Procedure. Up until now, an application for Public Funding to pursue a medical claim could be turned down if it was worth under £10,000 and the Applicant had not complained using the NHS Complaints Procedure. That is to be broadened so that now the Legal Services Commission will look for every potential Applicant to have pursued a claim using the NHS Complaints Procedure.

Secondly, there is to be greater emphasis on mediation. In publishing its Consultation Paper, the Government suggests that the vast majority of medical claims are concluded with neither side proposing to mediate rather than litigate. It wants to see this change. Reference is also made to the Redress Scheme proposed last year by the Department of Health. That envisages a procedure administered by the NHS itself, very different from the current Court-based system. Injured patients who seek Public Funding could under these latest proposals effectively be forced to use that NHS Scheme.

Thirdly, and perhaps the most important, Public Funding could be limited to the earliest investigative stages of a potential claim only. If a case proceeds beyond that point, the Government would be looking for it to be funded not by the state, but rather under a Conditional Fee (No Win, No Fee Agreement). The difficulty is that pursuing these cases under CFAs can be risky for both the acting solicitor and the Claimant. If the claim is unsuccessful and proceedings have been served, then the Claimant is responsible for the costs of the other side. Insurance can be taken out against that happening, but this is costly and not readily available – insurers find clinical negligence work too unpredictable. Claimants may find that when the Public Funding comes to a halt, they will have difficulty pursuing the case thereafter.

There are inevitable concerns over some of these proposals. Those of us who practice in this field have many tales of patients or their families who have not been able to gain access to justice. These proposals could well worsen the situation, or at least make it harder to get funding.

More complaints will mean more resources being eaten up in the NHS – in Trusts and in surgeries. There will be more and more pressure on Community Health Councils in Wales. The NHS Complaints Procedure can be long, laborious and frustrating. People with entirely valid claims may lose heart and will need to be sure they do not miss any legal deadlines.

Mediation is perhaps not the saving grace that many in authority think it is. Where the mediation does not succeed, it could simply add significantly to the costs picked up by the public purse at the end of the day. If the Redress Scheme ever becomes reality, many feel it could work great injustices – forcing patients who have limited means to use such a Scheme therefore generates its own objections.

As for cases having to proceed under Conditional Fee Agreements, the LSC might save money. However, another Government Department – the NHS – might end up paying out more by way of costs given the success fees paid to solicitors who have borne the risk of Conditional Fee Agreements together with the insurance premiums. The biggest losers could be Cerebral Palsy victims. Their cases can improve the quality of life no end if proven but they are invariably complex in the extreme. The fear must be that some such cases that are currently pursued to a successful conclusion might not be under the new rules if, for example, insurance is not available to take the cases forward.

Here in Wales there are particular worries. As a nation we do not enjoy good health. Our NHS in Wales is perhaps more under-resourced than many other regions in the UK. Given our poor health, we are therefore arguably more likely to suffer as a result of medical mistakes. Allied to that, those Welsh patients who do fall victim to such errors are more likely to be eligible for Public Funding than in other parts of the UK. This is borne out by relatively high welfare benefits levels across the region. Taking that one step further, if the net effect of these proposals is to cut down on Public Funding for clinical negligence claims, the Welsh public may lose out more than others. It might be said that Welsh patients are more likely to have a claim yet less likely to be able to do anything about it – a double whammy.

Most practitioners in this field would agree that the current system is far from perfect. Encouraging resolution of disputes by complaints and mediating is not necessarily a bad thing, but a blanket rule enforcing those methods of resolution may work unfairly in many cases. The last thing we would want is to see reduced access to justice for these claims. Not only are they often very deserving, but medical negligence cases are also of undeniable wider public importance in highlighting deficiencies and therefore limiting the likelihood of often very serious mistakes being repeated. There would be nothing worse than patients who have suffered as a result of a medical error then suffering again by being excluded from the legal system in order to help the Legal Aid budget.