If you have a strong case, with the evidence to back your claims then find a good solicitor and take the public body or NHS body directly to court. Do not go to PHSO as this will just delay your case by a year or longer and may hamper your route to justice if PHSO produces a (flawed) report stating there is no case to answer.
There is no definitive guide to understanding the legal system so that you can steer a clear path through the many obstacles that await you. Unfortunately, the system is deliberately complex, so that even those practising the profession fail to understand it completely. This mystique forces all of us to pay for legal advice at exorbitant hourly rates plus V.A.T.
If your case is medical then you may find this advice from a specialist solicitor helpful.
“In terms of the legal test, for any clinical negligence claim to succeed a claimant must prove his/her claim on the balance of probabilities, which means over 50%. A claimant must first prove there was a breach of duty and that the breach of duty caused an injury.
Breach of duty:
To establish that a doctor has breached his/her duty of care, the Claimant must show that the doctor has followed a course of action that is not supported by any reasonable body of medical opinion. If the Defendant can show that the doctor acted in accordance with a reasonable body of medical opinion, then the Defendant will have a defence to the claim. This is often referred to as a 10% rule. It is said that if 10% of doctors in the country would have taken the same course of action at the material time, then it will not be a negligent act.
If we are able to prove that some or all of the treatment was negligent we would then need to prove causation. This is also known as the “but for” test. This test has a high threshold. You have to show that, but for X happening, Y would not have occurred. It is for the Claimant to prove that the injuries suffered were as a result of the Defendant’s negligence. The case of Gregg v Scott states that causation has to be shown on the balance of probabilities, which means more likely than not/over 50%. It can therefore be said that the test applied is “but for” the negligence the patient would not, on the balance of probabilities, have suffered the harm in any event.”
How do I find a good solicitor?
With a clinical case, you can try AvMA they are a charity who can provide legal advice and support through court proceedings. Finding a good solicitor is not easy and you need to take some time over your choice. Ask them up-front about their fees and whether they will work on a no-win-no-fee deal which is pretty much all most of us can afford. There is a strict time limit for making a legal claim so make sure you will have enough time to put together your case and submit your papers. Ask up front the ‘quantum’ of the case, which is the likelihood of damages. The amount of ‘quantum’ will determine whether it is worth spending the money up front to take legal action.
You could also consider finding your own barrister using a system called ‘Direct Access’ Barristers deliver their services directly to you without the middleman. You can appoint a specialist in your field and although expensive, they work for a fixed fee and you know the total you will pay up-front. You will have to present the paperwork yourself, in a logical format with a numbered reference list at the front to guide them. The barrister will take only a short time to run their eye over your evidence and present you with a report which is included in the initial payment. You need to have a case estimated at 50% or above success rate to make it worthwhile.
If it looks like you have a case, but not a strong one in terms of compensation then you could try the small claims court. You can claim up to £10,000 in compensation and ‘in most cases’ the losing party will not incur costs, reducing your risk of bankruptcy. The loophole is the discretionary power held by the judge to find you ‘unreasonable’ and therefore worthy of punishment for your audacity at using the court system to simply display your vexatious nature. The judge doesn’t require proof of your ‘unreasonableness’ and you won’t find out until the final judgement is made. You can, of course, complain to the Ombudsman if you think that the judge has acted unfairly and so the merry-go-round spins again. Another trap to avoid is that the judge can find in your favour but if the judge then awards you the same or less than a previous offer from the defendant you automatically get the other sides costs. Solicitors are generally wise to the amount likely to be offered by the judge and set their pre-court settlement agreements accordingly.
If your small claims case is complex and moves into ‘fast track’ or ‘multi-track’ then costs can be claimed by the winning party, so consider this carefully. In small claims, you pay your own costs and that could include a barrister to represent you or you can represent yourself as a litigant in person. You will be up against the ‘big boys’ as public bodies can afford to pay for the best out of taxpayer funds. The chances are that they will play a game of brinkmanship and try to frighten you with threats of high costs should you lose.
It is not an easy route to take but NHS litigation costs are rising every year so there is a growing market for this kind of action. The payment comes from insurance companies and not from front-line services as is often suggested and the steep rise in litigation (up 15% since 2015/16) is directly linked to the failure of regulatory bodies including PHSO.
NHS Resolution, formerly known as the NHS Litigation Authority, estimates the total liability for medical negligence cases it is already dealing with could be as much as £56.1bn. theguardian/2017/cost-of-nhs-negligence-claims-is-likely-to-double-by-2023-study-medical-legal
You may find some of these links useful:
howtotakesomeonetocourt. Paul Fletcher’s user friendly account of how to use the small claims court.
which.use-the-small-claims-court ‘Which’ guide to using the small claims court.
solicitorsfromheaven Solicitors from heaven could help you to find a good solicitor
legal500 Legal 500 allows you to find out about Solicitors and law services but bear in mind that this is written by the solicitors themselves!
barcouncil. Bar council guild on how to be a ‘Litigant in Person’
avma If your case concerns a medical accident then AvMa could be a good starting place.
As the regulatory system continually fails to regulate
the only way to achieve remedy is legal action or media attention.