REPORT OF THE EXPERT GROUP ON FINANCIAL AND OTHER SUPPORT
5. THE SCOTTISH LEGAL AID SYSTEM IN RESPECT OF CLINICAL NEGLIGENCE CASES
CLINICAL NEGLIGENCE CASES
5.1 The Scottish Legal Aid Board's (SLAB) civil legal aid system contains no separate classification for clinical negligence; it is subsumed within a far larger reparation category. Detailed information on civil legal aid applications, grants and costs is not therefore available. However, a broad analysis done by SLAB estimates that in 2000-2001 the number of civil legal aid applications relating to clinical negligence was around 310; the number of applications granted was around 160.
5.2 A small sample of final accounts received for cases granted in the last three years showed varying costs, ranging from 50 to more than 12,000. Using the average cost of the sample, and the estimated number of grants in 2000-2001 as indicators, SLAB estimate the gross cost (including VAT) to the public purse as being around 450,000 per year. The net cost to the public purse would, however, be lower as a result of being offset by any financial contributions from applicants and award of expenses or damages in successful cases.
5.3 SLAB's analysis showed greater activity as regards advice and assistance with around 1,400 intimations for 2000-2001. By June 2001, 664 accounts were submitted for intimations received in 1999-2000. Payments ranged from 0 to 1,600. The total sum was just over 170,000. The total cost to the public purse will increase once all accounts are submitted, but not all intimations result in an account. The costs of some cases are wholly covered by financial contributions from applicants. Also, if a case is resolved under advice and assistance and a financial award is made, it is, as in civil legal aid, used to cover the costs.
5.4 We noted from the evidence submitted by the Scottish Legal Aid Board (SLAB) on access to legal aid in Scotland that SLAB's role is very much an administrative one. SLAB is working towards a more strategic approach on how legal aid is delivered in accordance with the recommendations of the Justice 1 Committee of the Scottish Parliament.
5.5 In England, there is a contractual basis for clinical negligence cases whereby cases are considered on the basis of wider public interest and special case units have been established. Scotland operates the system of Advice and Assistance. In clinical negligence cases, a lot of preliminary evidence is necessary and this means that solicitors could be applying for increases several times.
5.6 After initial interview with the client, noting his precognition, and coming to the view that there may be a case of clinical negligence the solicitor will intimate the claim and, if liability is not admitted, may then seek to obtain the client's medical records, with a view to submitting them to an expert for an opinion.
5.7 Increases are often sought for a particular procedure which solicitors are sometimes recommended to adopt in such cases; this involves going through the medical records with the client and then submitting them to a 'collator' to ensure that they are complete and in order before they are presented to the expert.
5.8 The Board does not grant increases to follow this procedure invariably in every case. In any case in which an increase is sought for either of these purposes, it needs to be justified by reference to the circumstances of the individual case. If the Board is not satisfied that one or other or both steps are necessary for a cost-effective approach to dealing with the matter, then the increase will be curtailed accordingly.
THE SCOTTISH LEGAL AID BOARD PROPOSALS FOR REFORM
5.9 The Scottish Legal Aid Board (SLAB) is aware that some of the processes in Advice and Assistance require to be updated and is developing a template to enable the submission of applications for increases and accounts by Solicitors electronically to simplify and speed up the process. It is also considering moving towards staged payments and interim re-imbursement for Advice and Assistance where there is no indication that repayment will be made.
5.10 In England, the whole process for applying for legal aid is simpler as an automatic increase is available in the form of a limited certificate. It would not be possible to introduce a limited legal aid certificate in Scotland under the Legal Aid (Scotland) Act 1986. However, some of the reforms being considered by SLAB, particularly those relating to Advice and Assistance, should simplify the process considerably in Scotland.
5.11 SLAB has provided guidelines for the profession on the requirements for certain cases. However, there is limited guidance available on obtaining legal aid for pursuing class actions. This is particularly relevant for the work of our Group in relation to Hepatitis C sufferers whose actions failed.
5.12 Civil legal aid will not be granted until SLAB is satisfied on probable cause, reasonableness, and financial eligibility. In clinical negligence cases it may be difficult for an applicant to obtain the expert evidence required to demonstrate probable cause. In criminal cases, the test applied by SLAB is whether it is in the interests of justice that legal aid be granted. For example, in a case of major injury there may be a disqualification from legal aid on purely, and in some cases marginal, financial grounds. The injured person is then left with the prospect of placing their financial security (and that of their family) at risk by having to fund the cost themselves with the attendant risk of a large award of expenses against them if they lose. An interests of justice provision would allow a balance to be struck between the importance of the matter to the injured person (and their family, NHS and society) on the one hand and the financial test on the other.
Conclusions On Legal Aid System
5.13 We conclude that it is desirable that the legal aid system should be able to deal with class actions as well as individual clinical negligence cases.
5.14 We would like to be involved in the development of the revised guidelines but realise that this may not be possible as this Group's work is now concluded.
5.15 We conclude that it would be easier for applicants to obtain legal aid in clinical negligence cases if the 'interests of justice' test were adopted and SLAB should consider the introduction of such a test in clinical negligence cases.
5.16 In our Preliminary Report, we agreed to look further at issues relating to access to legal aid and the development of specialist legal/medical experts. These issues are considered further in Chapter 7.
RECOMMENDATIONS ON LEGAL AID SYSTEM
5.17 Having considered a presentation from the Director of Legal Services at SLAB and the evidence submitted, we recommend that the Scottish Executive should invite SLAB to consider the following:
(a) proceeding with the development of the template on Advice and Assistance as soon as possible;
(b) including in the template provision for meeting/negotiation with the defender;
(c) including in the template provision for class actions as well as individual clinical negligence cases;
(d) updating the guidelines to the profession;
(e) introducing an 'interests of justice test' for civil legal aid applications in clinical negligence cases;
(f) proceeding towards the making of staged payments.