On Monday the Law Society launches a new campaign. It focuses on the value of instructing a solicitor to provide
sensible and accurate legal advice for personal injuries. Members of the public
will be directed to advice on how to pursue a claim and, via the Law Society's Find A Solicitor search, they will also be shown how to find details of personal injury solicitors near them.
I welcome this campaign, not least because it promises to take "a bold, humorous and memorable approach" to convey an important message. Exactly what that approach is remains to be seen, but sources tell me that this is a non-aggressive and well-judged campaign.
Justice, not profit
It's also a timely one. Misinformation about the mythical 'compensation culture' continues to run deep, colouring the public attitude to all lawyers but especially those in the personal injury sector. In fact, far from being unscrupulous ambulance chasers (another regrettable and unfounded media cliché), the majority of personal injury lawyers are ethical individuals who come into this area of the law because they want to help the individual against what are often large and faceless conglomerates. The motivation is securing justice, not personal profit.
This is seen in personal injury cases from road traffic accidents to complex clinical negligence claims. Clients seek legal advice because they have been injured, through no fault of their own; it is the solicitor's duty and privilege to serve them and their families.
Unfortunately, as reported by the ever excellent Legal Futures website, on the eve of the campaign a law firm has
been reprimanded for a radio ad which encouraged accident victims to claim
compensation "irrespective of injury".
The Advertising Standards Authority (ASA) received a complaint regarding a radio ad by a firm called KL LLP, which trades as Secure Law. In the ad, listeners hear a woman
telephoning a man, asking why he's late and if everything is OK. He replies: "Yeah fine, I just had a little bump in the car." He then says again that he is "fine" and asks for Secure Law's number.
I have not listened to the ad, but apparently the man repeats that he is "fine" for a third time, before a voice over states: "If you've been in an accident, make the second person you call Secure Law. They offer a no-win no-fee scheme, give you 100% of your claim and an upfront payment of up to £1,500."
An "irresponsible" radio ad
In its adjudication, the ASA said the firm argued that the ad "could not encourage someone to make a personal injury claim if they were not injured, because it would be censored by the Solicitors Regulation Authority, and would in all probability be put out of business, if not convicted in a court of law". The firm also evidently made much of the fact that the word "injury" wasn't mentioned in the ad.
The ASA rejected KL LLP's arguments. Upholding the complaint, it found that the statement "If you've been in an accident, make the second person you call Secure Law" encouraged listeners involved in road traffic accidents to contact Secure Law to claim accident compensation. The ad failed to make clear the basis on which the man had any grounds to make a claim and, concluded the ASA, was "irresponsible" because "the implicit message encouraged listeners to make a claim irrespective of injury."
The Law Society’s personal injury ad campaign, which will run for six weeks, will make use of radio ads for the first time; it is also planning to release a YouTube video.
Meanwhile, the campaign brings into focus a lesson that I believe all of us who work in personal injury law would do well to take to heart. We must remember is that if we want the public to believe in us - and to realise that a toxic blend of governmental and insurer-driven spin is what drives the misinformation about personal injury law - we lawyers need to be transparent at all times. We do a great deal of fantastic work for injured people, but in our communications there shouldn't be any room for doubt. If only we could be clear, open and ethical at all times, we might find that the media stigma of b'lame and claim' becomes a relic from an unlamented past.
Friday, 21 June 2013
Friday, 14 June 2013
A litany of errors that must not be repeated
This week we've seen a story that is both heart-rending and deeply worrying. It also casts a spotlight on the litigation landscape, post-Jackson and in the difficult new world of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO).
Maria De Jesus, a mother of three from Dagenham, was heavily pregnant when she developed pains in her stomach. She was admitted to Queen's Hospital, Romford last October, where she was treated by two trainee surgeons. Instead of removing her appendix, the surgeons took out one of Mrs de Jesus's ovaries.
A litany of errors
Mrs de Jesus was discharged eight days after the operation, but returned to hospital a week later with severe stomach pains. By this time it appears that she had developed severe sepsis as a result of appendicitis. Tragically, it was too late to save her. When doctors finally removed her appendix Mrs de Jesus died in theatre from multiple organ failure, despite the fact that 100ml of septic fluid was drained from her abdomen.
Cases like this are appalling. Three children have lost their mother; Maria's husband, Adelino de Jesus, is devastated. But to add insult to injury, it took a year and a half for a letter of apology to be sent by the chief executive of the Barking, Havering and Redbridge Hospital Trust, Averil Dongworth. On behalf of the Trust, she admitted liability and apologised to the family.
Mr de Jesus is understandably angry at what he describes as "a litany of errors". As he told The Evening Standard: "This is neglect, this is an unlawful killing. If my wife had been given treatment by fully qualified staff and people were informed of the mistake earlier she could still be alive." Moreover, he's livid at the length of time it took for an apology to be made - and the way in which it was conveyed. "Why has it taken so long? It is one-and-a-half years since she died. The letter is in Portuguese, our native tongue, but my sons speak perfect English - why can't they give me a letter in English as well? I am revolted by everything. It sickens me."
Mr de Jesus has every reason to be angry. He plans to sue the Trust, and it is entirely right and proper that he should be able to do so. The General Medical Council is meantime investigating eight medical staff in connection with the death of Mrs de Jesus.
Clinical negligence
With better standards of care and supervision, Mrs de Jesus would still be alive. The case against the Trust could not be clearer - and it has, of course, admitted liability - but often clinical negligence cases are not so clear cut. As Deborah Evans, the chief executive of the Association of Personal Injury Lawyers (APIL), says in PI Brief Update: "the success rate [in clinical negligence cases] is lower simply because the prospects of success are difficult to determine at the start of a case".
As Deborah goes on to explain, in the LASPO environment this creates a complex risk assessment exercise for lawyers - one which amounts to "a survival tool". Because a clinical negligence case is difficult to predict, with issues of causation often problematic, deciding to take it on may be a commercial gamble for law firms, because of LASPO changes such as the 25% cap on success fees. In other words, it may not economically viable to represent what Deborah describes accurately as "real people with real injuries that no lawyer wants to turn away".
Post-Jackson and thanks to LASPO, then, people who have suffered serious malpractice at a hospital or those who have contracted an industrial disease at work may not find it easy to bring claims for negligence. Do we really regard this as access to justice?
I wish Mr de Jesus well in his efforts to obtain deserved redress from the Barking, Havering and Redbridge Hospital Trust. I also hope that the Trust and other hospitals learn from this tragic case - and, in time, that we find a way of ensuring that victims of clinical negligence are not left without any means of securing justice.
Maria De Jesus, a mother of three from Dagenham, was heavily pregnant when she developed pains in her stomach. She was admitted to Queen's Hospital, Romford last October, where she was treated by two trainee surgeons. Instead of removing her appendix, the surgeons took out one of Mrs de Jesus's ovaries.
A litany of errors
Mrs de Jesus was discharged eight days after the operation, but returned to hospital a week later with severe stomach pains. By this time it appears that she had developed severe sepsis as a result of appendicitis. Tragically, it was too late to save her. When doctors finally removed her appendix Mrs de Jesus died in theatre from multiple organ failure, despite the fact that 100ml of septic fluid was drained from her abdomen.
Cases like this are appalling. Three children have lost their mother; Maria's husband, Adelino de Jesus, is devastated. But to add insult to injury, it took a year and a half for a letter of apology to be sent by the chief executive of the Barking, Havering and Redbridge Hospital Trust, Averil Dongworth. On behalf of the Trust, she admitted liability and apologised to the family.
Mr de Jesus is understandably angry at what he describes as "a litany of errors". As he told The Evening Standard: "This is neglect, this is an unlawful killing. If my wife had been given treatment by fully qualified staff and people were informed of the mistake earlier she could still be alive." Moreover, he's livid at the length of time it took for an apology to be made - and the way in which it was conveyed. "Why has it taken so long? It is one-and-a-half years since she died. The letter is in Portuguese, our native tongue, but my sons speak perfect English - why can't they give me a letter in English as well? I am revolted by everything. It sickens me."
Mr de Jesus has every reason to be angry. He plans to sue the Trust, and it is entirely right and proper that he should be able to do so. The General Medical Council is meantime investigating eight medical staff in connection with the death of Mrs de Jesus.
Clinical negligence
With better standards of care and supervision, Mrs de Jesus would still be alive. The case against the Trust could not be clearer - and it has, of course, admitted liability - but often clinical negligence cases are not so clear cut. As Deborah Evans, the chief executive of the Association of Personal Injury Lawyers (APIL), says in PI Brief Update: "the success rate [in clinical negligence cases] is lower simply because the prospects of success are difficult to determine at the start of a case".
As Deborah goes on to explain, in the LASPO environment this creates a complex risk assessment exercise for lawyers - one which amounts to "a survival tool". Because a clinical negligence case is difficult to predict, with issues of causation often problematic, deciding to take it on may be a commercial gamble for law firms, because of LASPO changes such as the 25% cap on success fees. In other words, it may not economically viable to represent what Deborah describes accurately as "real people with real injuries that no lawyer wants to turn away".
Post-Jackson and thanks to LASPO, then, people who have suffered serious malpractice at a hospital or those who have contracted an industrial disease at work may not find it easy to bring claims for negligence. Do we really regard this as access to justice?
I wish Mr de Jesus well in his efforts to obtain deserved redress from the Barking, Havering and Redbridge Hospital Trust. I also hope that the Trust and other hospitals learn from this tragic case - and, in time, that we find a way of ensuring that victims of clinical negligence are not left without any means of securing justice.
Thursday, 6 June 2013
Ethically Correct
In the wake of the latest scandal to hit the government the need for a reinvigoration of sound ethical principles could not be more pressing.
It is, in fact, extraordinary that we are once again confronted with the dismal spectacle of MPs on the make. Nearly 20 years ago The Guardian exposed Britain's then best known parliamentary lobbyist, Ian Greer of Ian Greer Associates, for paying bribes to two Conservative MPs in exchange for asking questions in the House of Commons.
Cash for questions (again)
The 'cash for questions' affair, as it became known, led to understandable public outrage and to the Nolan Committee being set up by Prime Minister John Major. Its task was to review the issue of standards in public life; in turn, it led to the creation of the Committee on Standards in Public Life.
Amid the collapse of high profile libel actions brought by Neil Hamilton and Ian Greer the Nolan Committee published its First Report, which articulated what it described as 'The Seven Principles of Public Life'. It is difficult to believe that each and every one of our current crop of MPs honours these principles, despite the fact that they are also enshrined in the Ministerial Code. By way of a reminder, here they are:
What was in Patrick Mercer's mind when he agreed to produce a Parliamentary report for a client for £2,000 a month? Evidently not the Seven Principles. Following a sting by The Telegraph and BBC's Panorama programme the MP for Newark has now resigned from the Conservative party and stated that he will not contest the next general election. One commentator said that in resigning Mercer had "acted honourably" but it strikes me that more honourable would have been not to have been tempted by financial gain in the first place.
The need for an ethical revolution
Also embroiled in the scandal is Lord Laird, who has confirmed that he was approached by two BBC journalists posing for a fictitious consultancy group, which was supposed to be acting for the Fijian government. His Lordship says he has referred himself to the House of Lords standards watchdogs and to Black Rod, the House's senior official, and avows that he has not broken any rules.
This may well be the case. This story has some way to go yet, with Panorama airing at 9pm tonight. Doubtless the media will follow up tomorrow; Lord Laird may yet be exonerated - or he may face serious criticism.
But even if, in Lord Laird's case, rules were not broken, it seems to me that we cannot hope to avoid another case of egregious conduct by MPs if they insist on acting solely by reference to the rulebook. What must happen is that MPs, and all of us who serve the public, absorb the Seven Principles so that they become second nature. We must strive to act ethically at all times, so that even if, according to the rulebook, a course of action may seem acceptable, we may yet decide not to take it because it doesn't seem ethically correct.
This need for an ethical revolution is as prevalent in the professions as it is in politics. We can all make mistakes - to err is, after all, human - but if we managed to act according to the Nolan Committee's recommendations we might find that our mistakes aren't so frequent - and that they're not so costly.
It is, in fact, extraordinary that we are once again confronted with the dismal spectacle of MPs on the make. Nearly 20 years ago The Guardian exposed Britain's then best known parliamentary lobbyist, Ian Greer of Ian Greer Associates, for paying bribes to two Conservative MPs in exchange for asking questions in the House of Commons.
Cash for questions (again)
The 'cash for questions' affair, as it became known, led to understandable public outrage and to the Nolan Committee being set up by Prime Minister John Major. Its task was to review the issue of standards in public life; in turn, it led to the creation of the Committee on Standards in Public Life.
Amid the collapse of high profile libel actions brought by Neil Hamilton and Ian Greer the Nolan Committee published its First Report, which articulated what it described as 'The Seven Principles of Public Life'. It is difficult to believe that each and every one of our current crop of MPs honours these principles, despite the fact that they are also enshrined in the Ministerial Code. By way of a reminder, here they are:
- Selflessness - Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.
- Integrity - Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.
- Objectivity - In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
- Accountability - Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
- Openness - Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
- Honesty - Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
- Leadership - Holders of public office should promote and support these principles by leadership and example.
What was in Patrick Mercer's mind when he agreed to produce a Parliamentary report for a client for £2,000 a month? Evidently not the Seven Principles. Following a sting by The Telegraph and BBC's Panorama programme the MP for Newark has now resigned from the Conservative party and stated that he will not contest the next general election. One commentator said that in resigning Mercer had "acted honourably" but it strikes me that more honourable would have been not to have been tempted by financial gain in the first place.
The need for an ethical revolution
Also embroiled in the scandal is Lord Laird, who has confirmed that he was approached by two BBC journalists posing for a fictitious consultancy group, which was supposed to be acting for the Fijian government. His Lordship says he has referred himself to the House of Lords standards watchdogs and to Black Rod, the House's senior official, and avows that he has not broken any rules.
This may well be the case. This story has some way to go yet, with Panorama airing at 9pm tonight. Doubtless the media will follow up tomorrow; Lord Laird may yet be exonerated - or he may face serious criticism.
But even if, in Lord Laird's case, rules were not broken, it seems to me that we cannot hope to avoid another case of egregious conduct by MPs if they insist on acting solely by reference to the rulebook. What must happen is that MPs, and all of us who serve the public, absorb the Seven Principles so that they become second nature. We must strive to act ethically at all times, so that even if, according to the rulebook, a course of action may seem acceptable, we may yet decide not to take it because it doesn't seem ethically correct.
This need for an ethical revolution is as prevalent in the professions as it is in politics. We can all make mistakes - to err is, after all, human - but if we managed to act according to the Nolan Committee's recommendations we might find that our mistakes aren't so frequent - and that they're not so costly.
Subscribe to:
Posts (Atom)