• DH impact assessment says lawyers may be “less willing” to take on expensive cases
  • Independent review warns of impact on patient safety if less negligence is identified
  • QC warns changes could leave families without representation at inquests

Some families might be denied legal representation for clinical negligence claims against the NHS as a result of the Department of Health’s plans to cap fees, it has acknowledged.

In an impact assessment of its proposal to cap lawyers’ fees in cases with awards between £1,000 and £25,000, the DH accepted there was a risk that some lawyers might be “less willing” to take on expensive cases.

An independent review of the plans for the government by Paul Fenn, from Nottingham University Business School, also warned the caps could make some claims unviable, particularly those that might require litigation in court.

An impact assessment of the plans, published alongside the DH consultation this week, said: “We have assumed no impact on case volumes, case outcomes and settlements.

“There is a risk however that claimant solicitors might be less willing to take on cases which are relatively more expensive to pursue and/or individuals will be less likely to make a claim due to wider reforms in litigation and clinical negligence.”

The DH said it expected changes at an individual case level but said overall as an aggregate it “assumes” there would be no overall change in the market as some firms expand and create new business.

In his report for the government Professor Fenn said: “Clearly, if there were to be no change to current behaviour and revenue requirements by claimant solicitors, many of these claims would simply not be viable for claimants.

“In particular, those of low value (below £25,000) which were anticipated to require litigation would be unlikely to obtain representation. Any major reduction in the propensity of patients to identify negligence could of course have wider implications for patient safety.”

Meanwhile Nigel Poole QC, head of personal injury and clinical negligence at Kings Chambers warned in a statement that the DH’s plans “will restrict even further the ability of families of those who have died as a result of clinical negligence to hold those responsible to account.” This could include representation at inquests, he said.

He warned many cases involving death would come under the capped rates as damages for bereavement are fixed well below the £25,000 upper limit and there are restrictions on who can claim damages. He cited as an example that parents of a 19-year-old are not entitled to bereavement damages.

The QC added the caps would also “effectively eliminate” the ability for lawyers to represent families at an inquest on the basis of a potential future negligence claim.

He said: “The availability of good legal representation and good expert advice to help you with any court claim will be severely curtailed if the recoverable costs are limited to £1,200 for all experts and £7,150 for the conduct of the whole claim.

“The fact that it is the Department of Health that is proposing these restrictions makes them even harder to accept. To be blunt, these claims involve fatal errors for which, in effect, the DH is responsible. And it is the DH which now proposes to restrict families’ abilities to prove that it is responsible.”

Ministers believe the rising cost of clinical negligence claims is unjustified and fixed costs are common in other areas of personal injury law.

Between 2009 and 2015 spending on legal costs increased 73 per cent to a total of £292m. The NHS Litigation Authority claims it has evidence of firms charging £800 per hour for unqualified lawyers. One firm tried to charge £1,440 per hour. In one claim for damages worth £1,000, the NHS LA received a bill from the claimant’s solicitors totalling £83,131. A judge later reduced this to £4,903.

The government’s impact assessment of the plans, based on an assumption that the number of claims remain at 2014-15 levels, suggests recoverable fees to lawyers could be reduced by £88m a year. Savings for the taxpayer – also including other cost factors – could be £146-£158m a year, with an additional £35m estimated saving to private insurers.

Junior health minister James O’Shaughnessy said the government had “taken into account legitimate concerns about access to justice” by reducing the upper limit to £25,000 which he said would cover approximately 60 per cent of settled claims in 2015-16.

A consultation on the plans will run until 1 May 2017.