It’s time for a holistic approach to NHS Trusts and PI advertising

Last week Andrew Bridgen, the Tory MP for North West Leicestershire, put down an early day motion attacking the prevalence of advertisements for personal injury lawyers in hospital waiting rooms.

“The Prime Minister talks about slaying the ‘health and safety monster’, but we’re feeding the monster and it’s going to get bigger,” said Bridgen. His comments were echoed by Simon Burns, the Health Minister, who told The Times he would be writing to Sir David Nicholson, chief executive of the NHS, about the ads. As Burns put it: “Patients should be able to focus on getting better, without having to be hounded by lawyers or adverts displayed in A&E departments. I will ask David Nicholson to write to hospitals to remind them it is not acceptable to display these adverts.”

Years ago, when I was a young solicitor, I recall another lawyer who took a robust view of advertising his firm’s services in hospitals. He was in the habit of visiting hospitals and not merely advertising his services, but removing any ads which promoted rivals. Back then, his conduct, unblushing as it was, seemed almost amusing, but times have changed. Our personal injury system has mutated into one which is rife with ingrained failure, not least when it comes to hospital ads for PI lawyers.

In fact, Department of Health guidelines prohibit the advertising of PI services in hospitals. A number of NHS trusts routinely ignore the ban, for a simple financial incentive: they may be paid up to £85,000 a year to feature the ads, or given donations of equipment and uniforms. In the cash-strapped years of the early 21st century, the trusts’ willingness to continue advertising lawyers’ services and the availability of no win, no fee claims is understandable, but their concomitant bargain with the devil is not so palatable: the firms advertising promise not to sue hospitals which carry their adverts. Instead, the tacit, or perhaps even express, understanding is that firms will seek compensation from anyone else in the chain of liability. This, in turn, can only feed the perceived compensation culture.

The Solicitors’ Code of Conduct contains provisions as to what law firms can and can’t advertise. Naturally, those firms who continue to target hospitals will comply with the Code. However, by way of a radical alternative, consider the situation in at one stage in Australia: there, advertisements for PI work were banned per se.

Here, it seems once again that the momentum which seeks to reduce the excesses of the PI market is in danger of not being fully thought out. Messrs Bridgen and Burns may (laudably enough) lament practices among various NHS trusts and seek to change them, but have they considered the impact of the Alternative Business Structure (ABS) regime in this sector? It’s all well and good to end the practice of lawyers advertising PI services in hospitals, but what is to stop a claims management company, set up under an ABS to employ PI lawyers, from doing exactly the same thing?

I welcome a ban of hospital advertising for PI claims, but unless it is approached in an intelligent, holistic manner, loopholes will remain.