The government is to press ahead with its plans to cap recoverable costs in clinical negligence cases by setting up a working group to consider how it will cut costs claimed on claims worth less than £25,000.
In a consultation response published today, the Department of Health and Social Care said the Secretary of State for Health has accepted proposals to set up a working group to develop a ‘bespoke process for clinical negligence claims’. A grid of costs will also be published.
The group is expected to be in a position to publish recommendations in the autumn. Those recommendations will be considered as quickly as possible, the department said. Work has already begun with the Civil Justice Council to establish the group. The group will include representatives of the legal profession and the NHS, but no further details of its membership were revealed.
According to the response, published today, the government is considering all of Lord Justice Jackson’s 2017 proposals on fixed recoverable costs and the Lord Chancellor will announce the next steps 'in due course'.
A total of 167 responses were received. The largest proportion of responses came from law firms, although there were also responses from individual solicitors and barristers.
According to the responses, 85% of those currently practising law and representing the claimant side, strongly opposed the idea. That particular group made up 37% of total responses.
Reacting to today’s announcement, Law Society president Joe Egan said: 'While the Law Society does not oppose fixed recoverable costs in principle, the real savings for the NHS will come from learning from its mistakes and increasing patient safety.
'Cases which are not necessarily the highest in value can still be complex and challenging. Fixing costs could end up limiting the time specialist solicitors can spend understanding the details of an incident in care. Patients must not be denied the legal help they need to get the full compensation they are entitled to in law.'
While welcoming the formation of the working group, Egan said that ministers have set it a 'worryingly short' timetable. 'It is crucial that adequate time is taken to get this process right, so that access to justice is not harmed in any way.'
Tim Spring, partner and head of clinical negligence at Moore Blatch, said the government should ensure that the working group includes adequate representation from claimant lawyers, to ensure that the voices of victims and their lawyers are heard.
‘In particular, the working group should seek to include lawyers with experience of working on both the claimant and defendant sides,’ he said.
Spring added: ‘Introducing fixed recoverable costs would see the most vulnerable in our society, including children, the elderly and individuals in poor physical or mental health, affected the most’.
Brett Dixon, president of the Association of Personal Injury Lawyers, said patient safety must not ‘play second fiddle’ to costs reforms. ‘We have advised the government that there is scope to streamline the procedures and cost involved in lower NHS value claims, but that is only part of the story,' he said.
‘The urge to streamline costs and procedures must go hand-in-hand with a real, systemic, consistent reduction in avoidable injury. Only then will the NHS become more efficient, and only then will we see an end to the needless suffering of patients.’
Rob Hendry, medical director at the Medical Protection Society, said: ‘From the £1.7 billion the NHS paid out on clinical negligence costs in 2016/17, legal costs accounted for 37% of that bill. It is right that we question whether such costs are sustainable for the NHS, and whether this amount of NHS money should be spent on lawyer fees.
‘The creation of an expert group will help to drive a fixed costs scheme forward, ensuring the threshold and process for clinical negligence cases is considered and implemented swiftly.’
He added: ‘We had hoped to see a bolder decision on the threshold with cases up to the value of £250,000 included in a scheme, however a £25,000 threshold is a positive first step – one which we hope will be reviewed and possibly increased over time.’
Update: The Courts and Tribunals Judiciary has posted on its website that the working group will be chaired by Andrew Parker, a partner at DAC Beachcroft. David Marshall, managing partner at Anthony Gold, will be vice chair. Further members will be announced 'in due course'.