recovered.and1996/97wasagoodyear:closedcasedatafrompreviousyears
shows recovery rates between 13 per cent and 17 per cent).
...TheGovernmentbelievesthatpartofthereasonsforthehighfailurerateis
that cases are being pursued by lawyers who are insufficiently experienced in
this area of litigation.' .p.19)Themessagecomingfromthisstatementisthatmostclinicalnegligencecasesdo
not succeed and that inexperienced lawyers are bringing weak cases. Charles
Lewis explains these figures, arguing [8]:
`... we can accept a success rate of about 17 per cent in respect ofalllegal aid
certificatesissuedforproposedmedicalnegligenceclaims.Thatisbecausemost
casesdonotappear,uponinvestigation,tostandagoodchanceofsuccess,and
therefore the legal aid certificate is discharged upon the advice of the patient's
lawyers, and no claim is commenced.'Lewis argues that most medical negligence claims in which proceedings are
actually commenced do succeed and that a distinction has to be made between
proposed claims for which a legal aid certificate is granted and claims that are
pursued beyond the stage of investigation.
Thedebateandpositioningofthepartiescontinuesanddifferentperceptionson
the issues are apparent. Arising from the consultation paper [9] has been the
notion of the experienced specialist health lawyer and that it is in the public's
interest to ensure that claimants only have access to experienced clinical
negligence legal practitioners.
5.2.1 Improving the quality of health lawyers
From 1 February 1999 clinical negligence legal aid franchises form the basis for
exclusiveprovisionoflegalaidinthisarea.Toapplyformembershippractitioners
must be a member of either the Law Society or the AVMA .Action for Victims of
MedicalAccidents)panel.[10].Aqualitythresholdhasthereforebeencreatedfor
legal advice to claimants who wish to be legally aided. A solicitor who wishes to
practice in the clinical negligence field must now seek membership of one of the
panels and satisfy their quality criteria. Clinical negligence is now seen by the
Government and the Legal Aid Board .now replaced by the Legal Services Com-
mission) as a highly specialised legal practice area.
The Government's view can be seen to be that the public interest needs safe-
guardingandthatthiscanonlybeachievedbyensuringthatonlycompetentfirms
of solicitors practice in clinical negligence litigation. This action is designed to
protect scarce public resources and to ensure public protection. A line between
conflicting and competing interests has been drawn and the product is a more
central form of control over professional legal practice. This type of legal advice
qualitycontrolexercisehasalsobeencarriedoutinrelationtothesolicitorswho
advise NHS Trusts and Health Authorities by the Special Health Authority which
managesNHSlitigation,theNationalHealthServiceLitigationAuthority.NHSLA).
The Policy Dimension: the Legal Environment of the New NHS 63