Freedom of choice of medical care should not be forfeited

Two weeks ago Charlie Scott was awarded £7.1m in a case that took 14 years to resolve. The story made various nationals, including the Mail, Guardian and The Lawyer. Charlie's story is therefore reasonably well-known, but that doesn't make it any less heart-rending.

Mistakes by midwives when Charlie was born at The Royal Bournemouth Hospital left him with a serious form of cerebral palsy. He cannot walk, talk, sit up or drink without assistance.

Charlie was diagnosed with spastic quadriplegic hemiplegic athetoid cerebral palsy at six months. He will require lifelong care. Quite rightly, his mother commenced legal proceedings against the Royal Bournemouth Hospital Trust - which denied liability for 12 years. Two years ago, Mrs Scott's tenacious lawyers succeeded in proving clinical negligence. The result, now, is the award of £7.1m.

To many people, the award would sound fair, given both the backdrop and the very considerable cost of Charlie's future care. But on 11 January Christine Tomkins, the Chief Executive of the Medical Defence Union, appeared on Radio 4 and suggested that compensation payments of this kind were "unsustainable".

Citing figures from the NHS Litigation Authority - which put its total liability at £16.7 billion in 2011 - Ms Tomkins said: "That's an awful lot of taxpayers' money. And if you look at the rate of increase, in 2010 they paid out £863 million in compensation and in 2011 that figure was £1.2 billion. That is a 39% increase in a single year."

Ms Tomkins criticised rules dating back to the foundation of the health service in 1948, saying that their effect is that the NHS has to pay for the cost of severely damaged patients "on the basis that all the future care will be provided in the private, independent sector". With regrettable predictability, a number of people were quick to post comments in various media to the effect that it is an outrage that victims should be awarded such seemingly high damages.

This issue is complex. Prevention must be better than cure: negligence such as that which so badly disabled Charlie should not happen in the first place. But if it does, claims should be resolved as quickly as possible, and victims must have freedom of choice. They must be given the freedom to try to obtain the best possible care for the rest of their lives. Anything less strikes me as a travesty.

We Must Do More For Victims Of Spinal Cord Injuries

Earlier this year, at the end of June, I attended the AGM of the All Party Parliamentary Group on Spinal Cord Injury. It was held at Portcullis House in the House of Lords, and I attended as a guest, having been invited by the Motor Accident Solicitors' Society. I found the experience to be poignant and inspirational in equal measure, and had planned, at the end of November, to attend a subsequent meeting of the Group. I was unable to do so owing to care issues facing my father, but my colleague, Allison O'Reilly, went in my stead.

Allison returned from the meeting feeling every bit as moved as I was. It's fair to say that she was angry, too. Here's why.

"The statistics read out by Dr Brett Smith of Loughborough University were frightening," Allison told me. "Dr Smith spoke about Spinal Cord Injured (SCI) people and their experience of living in care homes. He revealed that some 60% of SCI people living in care homes have considered suicide. One of them succeeded in turning off his ventilator, only to be saved by staff. When they came to investigate what had happened, he was too scared to reveal what he'd done. Dr Smith's evidence was of SCI victims up and down the country feeling as if they'd been condemned to life sentences, so poorly cared for were they in care homes."

I recall hearing similarly disconcerting testimony at June's AGM. I discovered a lack of clarity in determining who should pay for the treatment of SCI people, with some parts of the country passing the buck to NHS Primary Care Trusts, others to local social services. In turn, the divergence in practice created misconceptions, not least the widespread beliefs that once a person is not in hospital, they have to pay for their care, and that care outside hospital is social (or personal) care. A related myth is that people in residential or nursing homes automatically have to pay for their care.

Six months on, and Allison was unable to tell me that things had improved. The question of who pays for the care of SCI victims is as much a matter for debate as ever. This, and the many tragic tales aired at the meeting, accounted for Allison's anger. However, just as I was inspired by the story of John Burns last summer, so too did Allison come away feeling profoundly moved by an individual SCI victim.

Mr Burns is a tetraplegic who was injured in a watersports accident. His courage was palpable when he spoke at the AGM. Allison heard the testimony of Roger Hearn, who has also suffered a severe spinal cord injury. Allison encountered a similarly indomitable spirit in   Mr Hearn: "Roger is a lifelong cricket fan who was injured in a road traffic accident while in India on a cricket tour. He is now in a care home. It was heart-rending to hear of his experiences when he first came to the home - he had to tell the staff what to do but then, no sooner had they got to know him and understand his needs, they would move on. Often English wasn't their first language and communication was difficult. He has suffered huge indignity as a human being."

Allison went on to tell me that Mr Hearn credits his wife with keeping him positive - and yet, in his care home, it is not possible for the couple to sleep in the same bed. His wife therefore sleeps on the floor, to be close to her husband. No wonder, as Mr Hearn also told ITV, "survival is often just the name of the game".

Like me, then, Allison was moved and inspired by the tragic story of an individual SCI victim, but like me she also believes that, as a society, we must do more. It is simply unacceptable in a civilised democracy such as Britain that SCI victims have virtually no option but to live in care homes. They are as entitled to a decent quality of life as everyone else, and should be able to live in their own family homes - suitably modified, and with appropriate care provided - post-injury.

As Allison also put it: "I came away feeling so moved by Roger's story, and yet, there in the august corridors of the House of Lords, I could sense political defeatism. Will things change for SCI victims? I hope so - but only if we can make their plight better known."

Postcard from Berlin

Towards the end of last week I found myself rushing to catch a plane to Berlin. I duly checked in to The Westin Grand Hotel on Thursday evening, the reason for my visit being the 15th anniversary annual conference of PEOPIL.

PEOPIL is the Pan-European Organisation of Personal Injury Lawyers. The conference began at the Westin Grand on Thursday morning, which meant that I missed its first day, but there remained two days in which a number of topics dear to those who work in the PI sector were covered. They ranged from talks about the recovery of punitive damages in European courts and the use of medical experts to an excellent presentation on establishing jurisdiction by Philip Mead of Old Square Chambers.

However, rather than remark on the technical matters discussed at the conference, I hope regular readers will allow me to make a few general observations.

First, the power of Twitter was harnessed to great effect at the conference by no less a figure than Gerard McDermott QC. In between tweets wishing the Cambridges luck in their privacy action and commending the Times’ coverage of the UBS trial McDermott QC – a leading barrister at Nine St John Street and Outer  chambers – urged more PI barristers to attend conferences like PEOPIL (he observed that only himself and Philip Mead had made the trip) and noted a number of interesting points, for example concerning “conflicts between Hague Convention and Rome II regulation and opportunity for forum shopping”.

As well as updating followers on what was happening at PEOPIL, McDermott, who specialises in medical malpractice, product defects as well as catastrophic road traffic accident litigation, added a few snapshots of Berlin. We saw the Brandenburg Gate and also learnt that “The Westin Grand in Germany is a truly Grand hotel. Built by East Germans before unification. I think to show what they could achieve.”

Twitter-speak doesn’t allow for fulsome descriptions, but I can endorse what Gerard McDermott said about the Westin Grand. It’s a truly remarkable place, located in Berlin’s historic centre. It oozes atmosphere and has possibly the most efficient and friendly staff I’ve ever met. The Brandenburg Gate is nearby, so too many other historic locations – the Reichstag building, the Potsdamer Platz, the Gendarmenmarkt and Museum Island. Berlin’s transformation following reunification in 1990 means that the area is also full of elegant boutiques and designer shops.

I visited another nearby famous place – Checkpoint Charlie, the best-known Berlin Wall crossing point between East Berlin and West Berlin during the Cold War. While once a symbol of repression, Checkpoint Charlie is now a major tourist attraction, surrounded by souvenir stands selling all manner of tat (especially fake military items). I have to say that I wasn’t hugely impressed by this aspect – it reminded me a little of the anti-climax of visiting Land’s End – but it is nevertheless impossible not to be moved by even a fleeting visit to Berlin, replete as it is with so many landmarks of European history.

Towards the end of Saturday my visit came to an end. At Tegel Airport I experienced something unusual – German inefficiency. I managed to board my plane, which departed at 5pm, but I had cause to wish that the staff of the Westin Grand were working at the airport. The atmosphere verged on mayhem and I seriously doubted I’d get through security and make my flight, but back in Britain I was hardly consoled  by Chelsea’s 0-0 draw at QPR. By all accounts it was an even game, with my team playing effectively to secure a point. Here’s hoping that effectiveness makes for three points in the next game – and here’s to widening Gerard McDermott’s plea: it’s not just more barristers who should attend conferences like PEOPIL, it’s solicitors and everyone who cares about the future of PI law.

Postcard from Chicago

This blog is a first. In contrast to my usual musings, which are penned at various places in the UK, this one comes all the way from Chicago, Illinois. And no, before anyone tells me that I must be a workaholic, I'm not here on holiday.

I'm here as an attendee of the American Association of Justice (AAJ) annual convention, which is being held at the Chicago Hilton. The AAJ has been going for over 65 years, and previously  known as the Association of Trial Lawyers of America (ATLA). Its purpose is to support plaintiff lawyers of all guises, making for (as its website puts it) "a collective voice of the trial bar on Capitol Hill and in courthouses across the nation".

The AAJ's annual conference is attended by trial lawyers of every hue. There are seminars for trucking litigation lawyers, for those specialising in chiropractic malpractice litigation, birth trauma litigation and various kinds of pharmaceutical litigation. There all manner of other lectures and talks, all of which enable the open exchange of information and cutting edge know-how. I felt it was important to get a sense of how American lawyers deal with the kinds of issue that Spencers Solicitors handle, and so booked myself in for the four day conference.

The experience has been illuminating and when time allows I may write in more detail about it. For now, though, I will observe that two truisms seem to apply to the legal world on both sides of the atlantic.

Firstly, claimant lawyers are engaged in an adversarial battle with insurers. The latter subject to a minority exceptions seem to seek to minimise their liability at every stage, rather than remembering that without the people who take out their policies they wouldn't be in business. If only, as I have often argued in this blog, there could be a more constructive dialogue between insurers and claimant lawyers - if only a more holistic approach could be taken to the question of a victim's right to compensation - much time, cost and anxiety would be saved.

Secondly, claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover. While there may be merit in this in some ways, it cannot be right if the effect is to jeopardise a victim's ability to secure compensation to which he or she is rightfully entitled.

A final, more tangential observation is that it's true: American lawyers really are more theatrical than their British counterparts. They certainly don't lack for confidence and character. Last night, for example, my daughter Esme (who is accompanying me on the trip) booked us into Buddy Guy's Legends club. This is one of the most famous blues clubs in the world, and we had a fantastic evening watching brilliant musicians like Eric 'Guitar' Davis and Corey Dennison. As the evening wended on I found myself talking to a chap at our  table. He was confident and charismatic - and turned out to be an appeal judge from North Carolina.

Somehow, one doesn't seem to meet Court of Appeal judges in Ronnie Scott's club in the heart of the West End. That's not to say they don't like jazz - in fact, I suspect quite a few of them do - but it is to say that they'd be hesitant about striking up a conversation with a complete stranger. Not so in America, and tonight Esme is taking me to another blues club. I'll be surprised if any lawyers who happen to be there are backward about coming forward.

The White Paper on Social Care: we mustn’t let it turn into a missed opportunity

Recently I wrote about John Burns, whose battle to secure continuing healthcare in his own home gave me cause for considerable concern. For those who may not have seen my previous piece, Mr Burns suffered a tragic water sports accident which left him paralysed and without sensation from the neck down. But at the very time when he most needed the support and infrastructure of family life, he was forced, through lack of any alternative, to live in institutional care. Understandably, Mr Burns regarded this as akin to prison. He missed anniversary celebrations and seeing his sons grow up, and all the up and downs that make a family so special.

I was fortunate to hear Mr Burns speak at the AGM of the All Party Parliamentary Group on Spinal Cord Injury, held at Portcullis House. He brought his audience to the brink of tears as he so spoke so courageously. I left feeling profoundly moved, and determined to try to raise the profile of people in Mr Burns’ position.

With this in mind I applaud the publication of a white paper on the future of social care, published last week along with a draft social care Bill. As a press release from the Law Society has it, this amounts to “a rare opportunity to unify and modernise existing legislation which must not be wasted.” Law Society President Lucy Scott-Moncrieff  states: “Simplifying and unifying a mass of existing statute is an arduous and complex exercise.  The aim must be to improve the experience of those requiring care.”

The publication of the white paper comes against a backdrop of reduced spending on social care, a society whose citizens are living longer and a need for clarity on how the system will be funded in future. But does it do enough to help seriously injured people?

I will be taking a look at both the white paper and the draft Bill in detail to find out, but one thing strikes me as dubious at the outset. It is envisaged that elderly people in need of care will be able to take out loans on the value of their homes, repayment of which will be deferred until their death. Therefore people will not be forced to sell their homes to obtain care, but is it right that the family inheritance is potentially eradicated in this fashion?

I don’t think it is. I believe that as a society we are guilty of failing to respect those in need of care properly, whether they are the elderly or those unfortunate enough to suffer a serious and debilitating injury. At present, costs are pushed back and forth between local authorities and the NHS – a problem the white paper seeks to deal with by proposing greater integration – but as a starting point surely we should be accepting that society has a duty to meet the costs of care? After all, those who need care have paid their taxes and, in all but a tiny minority of cases, they have contributed to the wellbeing of their communities and the economy of the nation. Why does government, past and present, assume the default position that it is the individual’s responsibility to pay for care?

I will return to this topic in the future but, for now, I am not convinced that those suffering catestrophic injury  would be impressed or relieved by the content of this white paper.  Let’s make sure it doesn’t end up being a missed opportunity. 

SCI People Deserve Better

Yesterday I found myself in the House of Lords. Specifically, I was in the Grimond Room at Portcullis House for the AGM of the All Party Parliamentary Group on Spinal Cord Injury. I attended as a guest, having been invited by the Motor Accident Solicitors’ Society.

I found the experience very moving – and not just because of the impressive surrounds of the House of Lords. Certainly, being in such a historical place is stirring in its own right, but what I found so poignant was the subject under discussion, and the testimony of Spinal Cord Injured (SCI) people.

The AGM’s purpose was to discuss the issues SCI people face when being assessed for NHS continued healthcare. It was chaired by Ian Lucas, the Labour MP for Wrexham, and among those speaking were Professor Luke Clements of Cardiff Law School, and John Burns, who is a tetraplegic.

Mr Lucas was a fine chair, and Professor Clements an erudite analyst on the legal issues surrounding the provision of continued healthcare to SCI people. But what moved me so much was the story of Mr Burns, whose battle to secure continuing healthcare in his own home was shocking and dismaying in equal measure.

It strikes me as appalling that SCI people have to overcome such barriers when applying for continuing healthcare from their local Primary Care Trusts. Why, in a civilised society such as Britain, is it so difficult for people whose quality of life is so dreadfully curtailed to obtain adequate care?

The leading authority in the area is the Coughlan case, a Court of Appeal decision from 1999. Pamela Coughlan was a disabled woman who was denied fully funded NHS care, having been told that she only needed general rather than specialist nursing. She went to law to argue that the NHS had wrongly passed the buck to social services, and she won. In agreeing with her, the Court of Appeal laid down a test to determine whether the NHS is responsible for funding, as follows: 

• If the person’s reason for placement in a home was primarily a health need, then the NHS is responsible for funding the whole package;
• Local social services are only responsible for care which is “merely incidental or ancillary to the provision of the accommodation”.

Regrettably, the Coughlan criteria have not been universally adopted – the Department of Health left it to individual health authorities and Primary Care Trusts to decide each case on its own merits, which led to considerable divergence in practice around the country. In turn, this has led to palpable injustice and a great many misconceptions, not least the widespread beliefs that once a person is not in hospital, they have to pay for their care, and that care outside hospital is social (or personal) care. A related myth is that people in residential or nursing homes automatically have to pay for their care.


Professor Clements debunked these ideas, citing the Coughlan criteria to show that they are not legally correct. That he did so made Mr Burns’ tale all the more moving. This is a man whose circumstances are heart-rending and far from unique. He was forced, through lack of any alternative, to live in institutional care – which understandably he regarded as akin to prison. He missed family life, the benefits of which so many of us take for granted. Mr Burns missed anniversary celebrations and seeing his sons grow up, and all at a time when he was in most need of family support. 


Throughout, he had to try to come to terms with a tragic water sports accident which had left him paralysed and without sensation from the neck down. He brought himself, his wife and his audience to the brink of tears as he so spoke so courageously.


I’m glad I was able to attend yesterday’s AGM. In some ways, it was depressing – the neglect of SCI people and the systemic failure to provide properly for their needs is terrible – and yet I emerged feeling inspired by Mr Burns’ courage. I hope that other people will join me in pressing for a higher standard of care in this area. As a society, we can and must do better.