Candour in the wind

The Mid-Staffs NHS scandal was undoubtedly a watershed moment in the public perception of our health service. The public inquiry earlier this year into the hospital's failings found that at least 1,200 patients had died due to poor care and mismanagement. The report by Robert Francis QC published in February revealed that patients were left lying in their own urine and excrement for days - so desperate that they had to drink water from vases. Such revelations have changed the public's relationship with our health service. Unfortunately Staffordshire is not a one ?off. The Care Quality Commission has concerns about some 20 per cent of our hospitals in England and plans to carry out on-the-spot checks.

The Francis report's call for a duty of candour - if it's ever implemented - will mean that any patient harmed by the provision of a healthcare service is "informed of the fact and an appropriate remedy is offered, regardless of whether a complaint has been made or a question asked about it".

It's a welcome move. One hopes that the legitimate claims of the victims of medical accidents and their families will be treated expeditiously in this new spirit of openness; however it is far from sure that will be ?the case.

We should have no illusions: the findings of the Francis report will lead to an explosion in the number of claims against the NHS. And rightly so. Many patients who will have had moral reservations about claiming against 'their' health service now understand they are not alone.

Rising tide

If you look at the figures for medical negligence claims, it appears that the flood of new claims has already begun. According to the NHS Litigation Authority, in the last financial year running to 31 March 2012, they received 9,143 clinical negligence claims, an increase of 50 per cent on 2008/09. To put that into context, during the same period the number of non-clinical negligence claims (employers' liability and defamation) rose by just 18 per cent to 4,600 claims. While the exact numbers can be disputed, the underlying, steeply upward curve remains difficult to ignore.

However, the National Health Service Litigation Authority (NHSLA) says it is not yet high profile scandals such as Mid-Staffs but the lawyers' funding arrangements that are fueling this increase.

Unlike other types of personal injury claims, legal aid is still available for medical negligence claims but eligibility criteria have been tightened, and the NHSLA reckons that only 9 per cent of new clinical claims are being brought in this way.

In the last financial year, almost two-thirds of such claims (65 per cent) were brought under conditional fee agreements. According to NHSLA claims director John Mead, "There can be no doubt that the increasing willingness by claimant solicitors to take on clinical negligence under a CFA, coupled with increased availability of ATE cover, have fuelled this 50 per cent increa

Into the unknown

The underlying truth here however seems to be that because the government has demolished legal aid for medical negligence claims, lawyers have been forced to structure cases around 'no win, no fee' agreements.

The next generation of medical accidents victims will have to pursue their complex and sensitive claims in a changing legal services market. LASPO changes the funding of such cases - overhauling conditional fees and, in particular, ending the recoverability principle, scrapping legal aid for all clinical negligence cases (except for those cases where the negligence occurred during the first weeks of life) and introducing a referral fee ban. It is a step into the unknown.

Add to this uncertain picture that other landmark legislation, the Legal Services Act 2007, with its sweeping deregulation agenda, which is already beginning to transform the relationship between the public and the law.

The previous major deregulation in the legal services market - the Access to Justice Act 1999 - introduced CFAs backed by recoverability and was another step into the unknown. Its implementation was also chaotic. It led to commentators complaining of a so-called compensation culture. Certainly, it spawned a generation of non-lawyer claims companies led by Claims Direct which represented a tidal wave of litigation. Claims Direct was to go bust within two years (along with The Accident Group) but at its height it was signing up 5,000 clients a month. Many thousands of accident victims were left penniless and many more thousand unmeritorious claims were pursued.

The lesson for the sector is that complex cases need to be handled by specialists and not farmed out to claims factories. The question for us as lawyers is: 'What do our prospective clients want?' They want a cast iron assurance that they are dealing with an expert; they want to know that we understand what they have been through and that we are on their side; and they want us to give them affordable legal solutions and as much price certainty as possible.