Double trouble for MoJ

The Ministry of Justice (MoJ) is facing legal action on two fronts over its proposals to cut funding for community care law and clinical negligence.

The charity, Action against Medical Accidents (AvMA) launched judicial review proceedings over plans to scrap legal aid for clinical negligence.

The Public Law Project, instructed by 10 leading legal aid firms, also began judicial review proceedings against the MoJ’s decision to introduce a mandatory single telephone gateway for anyone seeking publicly funded legal advice in community care law.

The firms—including Bindmans, Jackson and Canter, Irwin Mitchell and Ben Hoare Bell—claim that individuals who have problems communicating by telephone may be unable to access advice. They point out that many of those who need community care advice are elderly, ill or have disabilities.

Under the MoJ’s proposal, a non-legally qualified telephone operator would determine a caller’s eligibility, whether their problem fell within scope, and whether they should get telephone only or face-to-face advice. The firms argue the government failed to properly consider the impact of its decision on vulnerable groups, and that the decision to include this category of law within a pilot scheme trialling a telephone gateway is irrational.

AvMA’s legal action argues that the MoJ’s proposal to scrap legal aid for clinical negligence is “unfair” and “irrational”.

Peter Walsh, AvMA chief executive, said: “Scrapping legal aid for clinical negligence is completely irrational whichever way you look at it, as well as grossly unfair.

Walsh said there had been an “inadequate and irrational consultation response and impact assessment” to the Legal Aid, Sentencing and Punishment of Offenders Bill, which is introducing the reforms.

“No consideration has been given to our argument that as the NHS is an arm of the state, it is a responsibility of the state to ensure availability to redress for victims of NHS negligence,” he said.

In a speech to the Cambridge Law Faculty earlier this month, Lord Justice Jackson singled out the removal of clinical negligence from scope as the “most unfortunate” legal aid cut. He called for it to be spared, pointing out that it is a complex area heavily reliant on expert reports.

An MoJ spokesperson declined to comment on AvMA’s judicial review application, but said: “Victims of clinical negligence may need a lifetime of expensive special care so we are clear they must be able to hold those responsible to account.

“Victims will still have access to solicitors through ‘no win-no fee’ deals, which the government is reforming. We are making special arrangements so that people will be able to insure themselves against the cost of reports if they lose.

“Importantly, we are also bringing in a rule that will mean, in most cases, victims will not have to meet the other side’s costs if they lose. Victims will be able to receive legal aid to fund the most serious and complex cases, where a ‘no win-no fee’ agreement is not available, and where the failure to provide funding would breach their human rights.”