Massive rise in legal aid for NHS negligence suits: Figures set to rise 150% in a single year

Scottish Conservatives can reveal there has been a massive rise in legal aid for clients suing the NHS for negligence, potentially rising by 150% in a single year.

The figure was £781,000 in 2008/9 and just over £1million in 2009/10. Halfway through 2010/11 and the figure is already £1.27m, meaning a final year bill of £2.54m if the current trend continues.

John Lamont MSP, Shadow Cabinet Secretary for Justice, said:

"There has been a shocking rise in the amount of taxpayers' money being used to fund negligence cases against the NHS over the past few years.

"It is important to stress that there has been a change since 2007 in how the figures are calculated [see para 3 of Kenny MacAskill's response]. But even that will only account for a small proportion of the rise. In 2009/10 the total was just over £1m and now halfway through the 2010/11 year we can see the figure is set to top £2.5m. If this trend continues we are looking at more than £6m next year and over £15m the year after that. Whilst some will view this as a worst-case scenario, the trend is frightening.

"The legal aid budget is one of the largest components of the Scotland's justice budget and must be controlled carefully. Legitimate claims must be allowed to be pursued regardless of the financial standing of the claimant. However, these figures suggest that too many people are using the courts as a means of settling their complaint regardless of the merits of their case.

"Although we must protect access to justice, we are in hugely difficult economic times and we must look to save money. Scottish Conservatives want to give patients greater protection through the Patients Charter, which might negate the need for such a rising legal aid bill.

"Some have also suggested that solicitors should offer no win no fee deals for such cases so that only those cases with a fair chance of success are pursued. Those cases with little probability of success would be dropped at an early stage and would also not be funded by the taxpayer. This needs to be considered by the Scottish Government because the situation is in danger of spiralling out of all control."

Below is the question John Lamont asked and the response he received:

John Lamont (Roxburgh and Berwickshire) (Con): To ask the Scottish Executive how much legal aid was paid to lawyers to represent clients suing the NHS for negligence in each of the last 10 years.
(S3W-36980)

Mr Kenny MacAskill :

The Scottish Legal Aid Board (SLAB) has responsibility for administering the legal aid scheme.

SLAB has reparation cases coded on its systems going back to 2001. In 2005, it introduced a category code to identify cases of reparation with a specific medical negligence component. However, it does not categorise the type of opponent.

Medical negligence cases take between 1 and 2 years on average to result in an account being submitted. As can be seen in the following table the first 2 years after the introduction of the new system saw a build up in the level of identified expenditure, and will not be an accurate representation of the amount of legally aided work related to medical negligence in any particular year.

The figures quoted are for all opponents that appear to be a part of the wider National Health Service - i.e. they include health boards, health trusts, individual doctors, dentists etc as well as the Scottish Ambulance Service, the Blood Transfusion Service and NHS 24.

Exclusions have been made for cases against obvious private companies and
non-medical bodies, for example the Scottish Prison Service.

The figures shown in the table have combined the costs of advice and assistance and full legal aid.

The breakdown of the total paid is shown in terms of solicitor's fees, counsel's fees and outlays to cover expenses and items such as expert witness reports. Figures are rounded to the nearest thousand pounds.

SLAB recovers a considerable part of the costs of medical negligence cases. In 2009-10 it recovered 30% of the total gross cost of these cases through expenses being awarded against opponents and through contributions from assisted persons. These gross figures therefore do not represent the net cost on the legal aid fund.

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