Fears have been expressed about fixed fees but radical change could address flaws in the current regime.
The overriding fear expressed about fixed fees is that they will limit access to justice and prevent those who have had their lives turned upside down from being able to get the help that they need.
In a climate of public spending cuts, the current cost of NHS negligence (£1.3bn and rising at last count) is hard to stomach.
Also, as fixed fees will require both sides to ‘play fair’, many point to the perceived failure of the much-heralded ‘duty of candour’ (where medical professionals admit to mistakes when injuries have been inflicted negligently) as evidence that fixed fees could become a shield for negligent medical professionals that blunts the sword of justice.
It’s also possible to argue that radical change is not necessary as the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) changes on clinical negligence costs are yet to be assessed – the impact of which the Law Society is trying to quantify with its current costs survey. The latest figures I have seen suggest the 30% saving in legal costs that the government would like to see fixed costs deliver will actually happen now, irrespective of further change once the post-LASPO cases wash through.
Despite all these reasons to be pessimistic, I can’t help thinking that radical change might be just the prescription the current failing system needs.
Those of us who care passionately about medical negligence know the current system is heavily flawed and also appreciate what a crucial difference a fairer and faster system could make on thousands of lives.
It may also be good for business. Greater speed and simplicity also means a quicker turnover and shorter gap between hours accrued and fees paid, making it easier to manage cashflow.
Of course this requires some radical change and for the system of fair fixed fees to take a holistic approach that encompasses both professions. There is an irreducible cost of investigating a claim and a recognition has to be made of the filtering of cases that occurs by claimant solicitors before the NHS sees a claim.
After a case has been through our vetting process, where often hundreds of pounds of disbursements have been incurred, we will only send a Letter of Claim to the NHS on well under 10% of cases of people who contact Fletchers wanting to make a medical negligence claim.
This investigation service has to be provided by someone; claimant solicitors or the NHS. At present, it is claimant solicitors bearing the cost.
So what should be on the legal sector’s wish list as we enter this consultation? How can we emerge with a system of fair fixed fees on the lower-value cases that will actually improve on the current system?
Rules must guide the right behaviour on both sides
Key must be a system that encourages good behaviour and punishes the bad. Co-operation and reasonableness are crucial to minimising cost and the new rules need to be designed to embed these behaviours into the process.
How this is applied is also important. Both sides need to be under pressure to keep to the right path, guiding not only the claimant but also defendant solicitors (who otherwise have no incentive to bring cases to a swift and fair resolution).
Focus on efficiency, not just lower costs
Fair fixed fees will also require the focus to be on efficiency, not simply lower costs. The cheapest course of action is not always the right one, even when setting out to lower the legal bill.
This will help ensure the system is impartial - anchored in good practice not political need - and accepted (who can argue with greater efficiency?). The most obvious illustration of this point is complex cases that are set at a low enough claim value to fall under fixed fees.
Again, this requires co-operation on both sides and a willingness to accept that both parties have a duty of care to ensure a just and fair outcome.
Innovating with new approaches
It will also be necessary to test innovative ways to handle cases, not just within law firms where newer and more efficient systems will be necessary to ensure sustainable businesses, but also in matters such as expert witnesses.
These are a large part of the ultimate bill – with each witness typically increasing costs by £6,000 to £12,000.
Use of a single witness, initially on lower-value, non-complex cases (say below £24,000) for condition and prognosis reports would make a substantial saving and reduce the knock-on costs of any resulting legal wrangling over differences of opinion.
My hope is that by this time next year we are working in a fairer, faster system. One where patients’ rights are enhanced by both sides working with each other to create the right outcomes and help those injured through negligence to get on with their lives.
Ed Fletcher is chief executive of medical negligence and serious injury law firm Fletchers Solicitors