This site is intended for health professionals only

Government to push ahead with cap on clinical negligence legal fees

The Government will set up a working group to look at fixing recoverable costs for clinical negligence claims with a value up to £25,000.

This is the conclusion from a consultation into proposals to reduce the amounts paid out by taxpayers to lawyers representing claimaints against the NHS.

The response, which comes over a year after the consultation was launched, backs the recommendation from Lord Justice Jackson’s review of civil litigation costs that the ‘the Civil Justice Council should in conjunction with the Department of Health set up a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially up to £25,000 together with a grid of [fixed recoverable costs] for such cases’.

The working group is expected to report back this autumn on fixing costs and wider reforms of the clinical negligence process, with the Department of Health and Social Care adding that GPs should be represented on the group.

However, medical defence organisations indicated that the move on its own would not be enough to bring down GP indemnity costs. MDU, MDDUS and MPS all said they had pushed for FRC for claims with a value of up to £250,000.

MPS medical director Dr Rob Hendry said: ‘We had hoped to see a bolder decision on the threshold with cases up to the value of £250,000 included in a scheme. While we understand the argument for not capping legal costs for the most expensive and complex claims, we believe it is appropriate and viable to include claims up to £250,000.

‘Disproportionate legal fees are still a significant issue for claims up to this value – setting the threshold at £25,000 would help, but the benefits would be far greater if the threshold were set at a higher level.’

Dr Matthew Lee, Medical Defence Union professional services director, said that ‘the announcement of a Civil Justice Council working group to examine excessive legal costs in clinical negligence claims is a delayed but still welcome first step’, adding that he hoped the long-touted plans would ‘move ahead faster now’.

Article continues below this sponsored advert

But he added: ‘Fixing costs for legal fees will only make a difference if the threshold for clinical negligence claims is set at £250,000, not £25,000 as proposed last year by Lord Justice Jackson.

‘Patients who believe they have been negligently harmed must have access to justice, but fixed costs are fairer and will help to establish some much needed balance to the system.’

MDDUS chief executive Chris Kenny said: ‘We remain of the view that a cap of £250,000 is both necessary and proportionate. The report also shows that the arguments in favour of a cap in excess of £25,000 have been well made. We look forward to discussing these points in more detail as part of the working group.’

It comes as health secretary Jeremy Hunt announced plans for a state-backed indemnity scheme for GPs last October although plans are not expected to form before next year.

Niall Dickson, chief executive of the NHS Confederation, said: ‘It must surely be fair to cap the amount lawyers can charge for their costs, and we welcome the decision to set up a group to work on this – we trust that the Government will act quickly on its recommendations.’

He said the rising cost of clinical negligence cases was ‘unsustainable and already means that vast resources that could be used by the NHS are being diverted elsewhere’.

However, opponents told the consultation the move would simply drive costs elsewhere or limit patients’ access to justice and redress, as lawyers might be unwilling to take on cases because of the fixed fee.