Campaigners fear that scrapping legal aid for clinical blunders will mean future victims will not have access to a reasonable life that compensation can buy
Like many boys on the cusp of adolescence, Theodore is thinking about beer and fast cars. Top of his wish list is an orange Lamborghini, but for now he may have to settle for a high-speed wheelchair.
Theodore cannot walk, talk or sit without support. He has to be fed through a tube directly into his stomach. He is a bright 11-year-old, but due to catastrophic misjudgments by medical staff at his birth has a severe form of cerebral palsy. After eight years of negotiation, the Royal Berkshire NHS foundation trust paid out a seven figure sum (the family don't want to say the exact amount) for the support and care he will need throughout his life.
"You read in the paper that people have got a £6m settlement or they got a £9m settlement and it's like they've won the lottery," says Theodore's mother Sarah Sargent. "But in fact everything costs a lot more if you've got a disabled child."
Since the compensation came through last year, Theodore, his mother and two siblings have finally been able to buy a home that will meet his needs as he grows. The four-bed house will have to be fully adapted. Widening doors and fitting ramps, replacing carpets with hard flooring, installing a linked bedroom and bathroom with a system of hoists, adding a carer's room and secure remote entry, and levelling the garden will cost £300,000. And that's just the start. A communication device with eye-gaze technology costs a further £12,000, an electric wheelchair is £5,000, a fully adapted vehicle is £60,000. Even the bandanas that catch Theodore's dribble are £7 each. Any holiday requires an accessible house and a carer whose travel costs and accommodation have to be met by the family.
Having the settlement, says Sargent, "has simply meant we can enjoy activities and experiences that a normal family takes for granted. There isn't a financial obstacle any more."
Theodore's case may be one of the last of its type to be funded by legal aid. The legal aid, sentencing and punishment of offenders bill, which is approaching the report stage in the Lords, proposes that medical negligence should in future be dealt with under "no win, no fee" arrangements.
Campaigners are worried that scrapping legal aid for clinical blunders will mean future cases are denied the same kind of justice that Theodore has enjoyed and the access to a reasonable life that compensation can buy.
The annual cost of legal aid, which was introduced in England and Wales in 1949 to ensure access to justice was available to even the poorest people in society, has ballooned to more than £2bn. The justice secretary, Kenneth Clarke, is determined to reduce that, ploughing on with plans he insists will cut overall costs, despite opposition from the NHS's own lawyers, who say the changes will: "undoubtedly cause NHS legal costs to escalate massively".
Peter Walsh, chief executive of the charity Action Against Medical Accidents (AvMA) which campaigns for patient safety, says: "It's doubly bad because some people will be unable to get justice, and those who do will end up costing the state more." He says that although the Ministry of Justice will save £10m on medical negligence, the new system will push nearly three times as much on to the NHS, because hefty "success fees" will be added by lawyers to the amount paid out in damages if a claimant wins a case.
Theodore's solicitor, Helen Niebuhr, says that under the new regime she will struggle to take on cases like his. Her firm, Oxford-based Darbys, would need to find an alternative way of paying up to 15 experts to assess the causes of damage to a child as well as his or her needs into adulthood. "The cost of fees to trial can be £150,000 to £200,000. No family can afford to fund that," she says.
The government says the money could be provided through specialist insurance policies, but many in the legal profession are dubious that will work.
"Even if I were able to take the case on a 'no win, no fee' basis it would not be possible for the firm to fund those expenses," says Niebuhr. "Therefore, families like Theodore's would be effectively blocked from making claims. I wonder if that is really the outcome the government wants." A survey by AvMA suggests that 50% fewer cases will be taken on.
When Clarke announced the changes in March last year he claimed he was attacking Britain's "damaging compensation culture". But Walsh says it is offensive to suggest that medical negligence claims have been inflated by so-called ambulance chasing.
In 2010/11 £8.65m was paid out and 8,655 new claims were made, a rise of 2,000 from the previous year. Around seven in 10 claims made with the help of legal aid are successful, but Walsh says the number using legal aid to claim is falling. "It's quite common that people who come to us say they don't want to take action against the NHS," says Walsh. "But they are driven by two things – either they have been lied to or they need the compensation to survive."
Nobody told Sharon Redding that what happened to her newborn daughter at St James's hospital in Leeds could have been avoided. Induced at 41 weeks, she realised through the fug of medication that her baby had been born grey and didn't seem to be breathing. Starved of oxygen at birth, Eleanor was transferred to the special care unit and had fits.
Ten months later, when it was obvious that there was something seriously wrong, Redding took advice from Sally Leonards at Manchester-based JMW solicitors. The hospital admitted liability and a final settlement of a seven-figure sum was reached in November 2011 – nine years later.
Eleanor can walk short distances and has some speech but needs a full range of mobility and communication aids and will need 24-hour care for the rest of her life. Since receiving the judgment last year, the Reddings have been able to move out of their terrace house into an adapted bungalow.
Lifetime of care
Before they moved, nine-year-old Eleanor had to be carried up and down the stairs. Now she can access all the rooms and has a bath and shower. Without the settlement, her family say none of this would have been possible. Nor would Eleanor have had access to her private physiotherapist, or the occupational therapy, speech therapy and physical activities, all of which supplement the patchy service provided by the state. The Reddings have been able to provide a range of hi-tech aids that their primary care trust refused to pay for. And they no longer have to worry about what will happen to Eleanor once they can no longer care for her, as the settlement takes into account her lifetime of care.
Leonards says cases take so long to settle because compensation is calculated according to each claimant's precise identifiable future needs. In the cases of Theodore and Eleanor, who are both of above-average intelligence, that would include supporting them through university with carers and research assistance.
Under a no win, no fee system, part of the success fee charged by Eleanor's lawyers would come out of her compensation, which would mean less money to spend on care needs. That is going to leave families with some very difficult decisions, says Leonards. "They will have to decide which items of desperately needed equipment or therapy their child can do without. I think it's completely unjust that claimants are placed in this situation."
But Clarke is adamant that denying legal aid to claimants in medical negligence cases will not see them suffer. He puts the onus on lawyers to change their practices. "I don't think most lawyers will have the nerve to charge success fees to people who are paying on their own account out of their damages," he says.
Some names have been changed