20 July 2011
Paul Sankey questions if Government reforms put the NHS above the law?
One clinical negligence solicitor has written that the Government’s reforms will put the NHS above the law. Is this true?
The reality is that it is a half-truth. The same law will apply to the NHS as to everyone else. But that does not mean that all will in practice have equal access to law or that the law will do justice.
You could say there are 3 elements to a just legal system. First the same law must apply to all. Secondly the law must actually provide a remedy to those who have been wronged: a law with no teeth is ineffective. Thirdly the cost of going to law must not preclude anyone.
The problems with the Government’s reforms concern the second and third. As regards the second, changes to the funding of ‘no win no fee agreements’ will mean the victims injured in medical accidents will no longer be able to recover their loss in full. The Government is trying to abandon the compensation principle - that those negligently causing loss must compensate in full for the damage they have done. Under their proposals compensation will be eroded by costs.
As regards the third, removing legal aid will prevent some of the most serious injured and vulnerable babies and children obtaining access to the legal system. The idea that lawyers will be able to run extremely expensive, risky and lengthy claims under ‘no win no fee agreements’ is pie in the sky. These claims will become the preserve only of the wealthy.
It was famously said that anyone can go to the Ritz. But that does not mean anyone can afford to. There is a danger that the same becomes true of some clinical negligence claims. If so we will still have a legal system but not equality before the law. We will have taken a giant step backwards to throw away something all lawyers should rightly cherish with pride.Paul Sankey is a solicitor specialising in clinical negligence. If you or a member of your family have a clinical negligence enquiry please call our expert clinical negligence solicitors on 0800 916 9049, fill in our short online claim form or email firstname.lastname@example.org and one of our specialist clinical negligence team will be in touch.
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