Clinical Negligence Legal Aid Lives On

'Of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate.'

 -  Lord Justice Jackson

Michelmores Solicitors - Bernadette McGhieThe Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came in to force on 1 April 2013, has completely changed the landscape of public funding for clinical negligence claims. However, Legal Aid is still available for claimants with certain types of injury, and it is important that people looking for a solicitor for a claim of this kind are aware of this. It is also important to ensure you instruct a firm of solicitors who have a Legal Aid Agency Clinical Negligence Franchise, rather than a non-specialist firm.

Claims for neurological injuries sustained as a result of negligent medical care or treatment can still be funded by Legal Aid, provided the injuries were sustained during pregnancy, birth or the 8-week postnatal period. An injury must be sufficiently serious that it leaves the child severely disabled.

The 8-week requirement is controversial, and somewhat artificial; a child who suffers damage after nine weeks would be excluded from access to public funding for a claim. However, although the time restriction is unequivocal, analysis of the wording of the relevant section of LASPO suggests that the new rules may not be quite as restrictive as they first appear.

Although the rules may be intended to deal with birth injury, they do not exclude injury resulting from other forms of negligent treatment, so long as the brain damage takes place within the 8-week period. For example, if a child in its first 8 weeks of life undergoes heart surgery, and suffers severe neurological damage as a result of the operation, we predict that this would satisfy the criteria for Legal Aid. The same should apply for severe nerve damage suffered during delivery, such as Erb's Palsy (brachial plexus injury), or birth defects caused by wrongly prescribed medication.

Clinical negligence is a complex area of law, demanding highly technical medical knowledge as well as litigation experience. The changes in the law may have left many people feeling intimidated by the thought of making a claim, but they should be aware that this public funding option still exists, albeit within confined parameters. There are also alternative ways to fund an action, including Conditional Fee Agreements ('no-win, no-fee'); you may also find that your claim could be supported by a Legal Expenses Insurer.

If you, or a member of your family, have suffered a head or brain injury, please contact Bernadette McGhie for free, confidential advice. Freephone 0800 0730140.

Bernadette is a partner in Michelmores' dedicated clinical negligence department. She has particular expertise in child brain injury, with a history of success in high-profile cases. She is on the referral panel for the charity Action Against Medical Accidents (AvMA), and Michelmores are included in the legal services directory for the Child Brain Injury Trust.