Many medical negligence claims continue to be funded by way of Legal Aid and that is particularly true in this corner of South Wales.

Anyone seeking Legal Aid to pursue such a claim must now be aware of a new requirement introduced at the end of July. Before they can apply, they must have pursued a complaint under the NHS Complaints Procedure.
 

Failure to do so would usually mean the application for a Legal Aid Certificate would be rejected. There are just a few exceptions. For instance, if the NHS body being complained to refuses to deal with the complaint, or does not reply within 6 months - but that would be rare in my experience. Another exception would be if the time limit for commencing Court proceedings – usually three years – would be missed if the patient had to go through the Complaints Procedure first.

So why has the Government introduced this new requirement? Effectively, there are two reasons. Firstly, it is hoped that patients/their families pursue a complaint in the first place, that may in fact resolve their concerns so that public money does not have to be spent on a legal investigation.

Secondly, it may be that the complaints process will “cut some corners” and give a clearer idea to both the patient and the NHS body concerned as to whether or not there might indeed be a legal claim for damages. Again, it is envisaged that in those circumstances, there could be a saving of costs if any claim is concluded more quickly as a result of the complaint/investigation.

The last set of statistics for NHS complaints in Wales showed that in the year ending March 2004, just over 5000 complaints were handled by NHS Wales – around 100 per week or so. Unsurprisingly as one of the biggest Trusts, our local NHS Trust here in Gwent, dealt with quite a number, just short of 500. Statistics demonstrated that in fact those were dealt with more quickly than in many other parts of Wales – 80% of complaints being replied to within 4 weeks.

The new requirement for complaints to be pursued before Legal Aid can be sought may lead to an increase in the overall number of NHS complaints. Although complaints may take up significant, and very precious time of NHS staff, on the other hand it must be acknowledged that if lessons are learned as a result, this is a good thing.

Where a patient wishes to be assisted in the complaints process, they could consult their local CAB, Community Health Council or perhaps a solicitor.