Legal aid rules for families in Scotland who need compensation to care for brain-damaged children are unfair, lawyers say.
“These children have suffered some of the most catastrophic, life changing injuries, many due to negligent hospital treatment when they were born. Their families will need to use the civil courts to pursue compensation to pay for their child’s ongoing specialist care needs,” said Gordon Dalyell, the Scotland representative of the Association of Personal Injury Lawyers (APIL).
“Some families have to turn to legal aid to fund the costs of pursing a claim for redress. The current rules, however, mean that the finances of both parents are taken into account when assessing if a child’s case qualifies for legal aid. But any money parents have will be swallowed up paying for their child’s specialist needs. It should not be counted as somehow ‘spare’ money. They effectively don’t have it,” he explained.
APIL is calling for only the child’s resources, not that of the parents, to be taken into account in an application for legal aid in these cases.
“The fairest way when determining legal aid would be to look at what the child needs and any resources the child might have and not the parents’ resources.”
APIL has responded to a consultation by the Scottish Government on modernising the legal aid system and has taken the opportunity to call for the law to be amended. Legal aid is used in some personal injury cases when other funding methods are not available.
“Not all of the care and treatments that a brain-damaged child needs are available through NHS Scotland so families will need compensation to help meet the cost of specialist equipment and therapies that their child will need,” said Mr Dalyell.
“Parents’ finances are never a true reflection of what families have available to them, as their money will be spent or earmarked for the specialist care that their child needs now, and in the future,” he said.
“Brain-damaged children are some of the most vulnerable people in society. The current legal aid system needs to change. Victims of negligence are denied access to justice because they do not meet unjust financial criteria.
“Let’s not forget that if families cannot access the compensation they need and deserve from the wrongdoers which cause the harm, the State then picks up the bill for the financial cost of care and living support instead,” he said.