Wednesday, 27 June 2012

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.

Wednesday, 20 June 2012

Looking back on the ideology of the law

I was pleased to see a number of comments to my post last week, in which I argued that being a PI lawyer is a rewarding and fulfilling occupation rather than the selfish, profit-driven role of media cliché. Since writing that piece, I’ve been thinking about what draws people to the law as a career. Are there lessons to be learnt if we cast our minds back to what propelled us into the legal profession in the first place?

My story is perhaps typical, in that I wasn’t motivated by ideology pure and simple. But it’s also typical, I think, given that when I look back on it, I realise that an ideological commitment was present, if ill-defined, by dint of the very nature of the law.

I qualified as a solicitor in 1985. My entry into the law came via a mixed social sciences degree at Hatfield Polytechnic. My first love was economics, which was part of the degree, but as time went by I found the maths involved more difficult. Law, though – which was also part of the degree – came more easily. I gravitated increasingly to law and then discovered that if I majored in it I was deemed to have completed what was then known as the ‘Part 1’. (Qualifying as a solicitor entailed Parts 1 and 2; compared with today, passing Part 1 was the equivalent of completing a law degree or the Common Professional Examination.)

I went on to complete Part 2 (the equivalent of today’s Legal Practice Course) at Leeds Polytechnic. For a time, I flirted with the idea of becoming a barrister, but ultimately settled to the solicitor’s calling. The reasons, when I look back on it, dovetail with the points I made in last week’s post. Early on in my articles, I realised that being a solicitor meant helping people. They would come into the office with all manner of problems, and the solicitor’s job was to help them find solutions. The work was meaningful and interesting, and it meant being intimately involved in people’s lives.

Many years have since passed. I have worked primarily as a litigator throughout my career, with two abiding specialisms: child care and PI law. I also enjoy the business side of the law, a factor which has been instrumental in a previous role in one firm as managing partner and which now provides a large slice of my day’s work at the helm of Spencer’s.

But if ideology was not a core driver when I joined the law, it was nevertheless key to every lawyer’s practice when I entered the profession. Lord Benson’s principles of ethical behaviour were second nature. They were inculcated at degree level, throughout articles, and by one’s peers as one’s career developed. What happened, then, was that ideology was absorbed as if by osmosis. Solicitors were trained to put the client’s needs first, and think of their own profit second. Of course, some solicitors bucked this trend, but I strongly believe that the majority epitomised Benson’s ideal that ethical rules and professional standards ... should be higher than those established by the general law’ .

Things are different today. All manner of incursions have been made into the law as it was 30 years ago. The ABS regime is the most obvious, but it is part of an overall commodification of legal services – the ‘Tesco law’ blueprint which threatens to alter the legal landscape beyond recognition. I strongly support greater efficiency, eradicating all waste and moving with the times, but this should never be at the expense of professional standards.

When I look back on my decision to join the law, I realise that one of its prompts was pragmatism – the sense that here was a good career, which would provide me with a living. But why was the law so obviously a ‘good career’? I think it had this flavour because of the way in which solicitors conducted themselves, because of the sense of duty and service that went with the territory.

Ideology, then, was there all along, and as we look at the many changes to today’s legal landscape it strikes me that it would be no bad thing if it were foregrounded for today’s young lawyers. Lord Benson’s principles should become second nature to them as much as they were for those of us who entered the law two decades or so ago. 

Wednesday, 13 June 2012

Why become a personal injury lawyer?

In America, the ambulance chasing personal injury lawyer is a staple of press vilification and TV caricature. Here the portrayal isn’t quite as negative and all-pervasive, but we personal injury lawyers are sometimes tarred with the same brush as our transatlantic brethren. The media likes to depict us as ruthless and aggressive, a breed of lawyer who, if at the scene of an accident, only sees pound signs flashing. Why, then, become a PI lawyer?

There are plenty of reasons. The first is that the stereotype is wrong. Granted, some PI lawyers are unscrupulous and money-minded, just as the same can be said about some doctors, or accountants, or architects, or anyone in any of the professional services. But most of us enter this sector of the law because we’re motivated by a number of things that have nothing to do with money. Here are a few:
  • PI lawyers are passionate about justice. We see people who have suffered injuries through no fault of their own, and we want to help them obtain redress. No wonder that PI law is a branch of tort law, and that the word ‘tort’ is French for ‘wrong’: we’re in the business of trying to right wrongs.
  • People are what PI lawyers are about. We’re naturally curious, gregarious types. We like meeting people. We care for them. That’s why we like acting for the individual rather than corporate entities. For us, there is a huge amount of satisfaction to be had from seeing a client’s case through either to victory in court or a satisfactory settlement.
  • A motivation for a great many PI lawyers is that they will spend their working lives immersed in the fabric of life, not buried in documents – as is the case for lawyers in other areas of the law. If you work as a PI law you won’t spend all your time swamped by paperwork.
  • But so too is PI law challenging. If you enter this area of legal work, you will never be bored. There are cutting edge developments all the time and you won’t lack for intellectual stimuli. 
  • Because PI law is so enmeshed in daily life, you learn something new every day. What you learn can be applied to your own life. It will make you more aware of your rights and responsibilities, and better able to make informed choices and decisions. 
  • Perhaps more than any other sector of law, PI law is about communication. It’s about argument, too – for example, your client’s claim will be opposed by insurers. Working in PI law therefore means that you’re always on your toes as a communicator and an advocate. These are transferable skills that you can apply across the board in your life. 
  • Above all else, PI law is about passion – passion for justice, for helping people, for doing the right thing; passion for its unique mix of law and practicality and for the chance to make a difference.

If the above resonates, you might be just right for PI law. And if so, ignore the ambulance chasing tag. It’s a tired old cliché. The truth is that duty comes before profit. This should be the motivation for every lawyer, not just those of us working in PI. 

Thursday, 7 June 2012

Praise Be: the OFT has a go at Backhander Britain

At last, a breath of fresh air in the debate about the insurance industry. It came last week in the form of the Office of Fair Trading’s report on private motor insurance. Make no mistake: for those of us who have been banging the drum for reform, the OFT’s report was just what the doctor ordered, all the more so because it came in the midst of a barrage of spin about supposedly bogus whiplash claims and their dire effect on motorists’ premiums.

But the OFT report is not merely welcome because of its timing. Its clarity and sense are as impressive as its provisional decision to refer what it describes as the “dysfunctional” UK market in private motor insurance to the Competition Commission for full investigation. Transport Committee chair Louise Ellman applauded the report, describing it as “a major step forward” and declaring that the Committee ought to engage in the ensuing consultation process with a view to making “the strongest possible case for the referral”.

It is to be hoped that referral duly comes to pass. The insurance industry has mutated into an industry where profiteering sometimes seems to be the insurers’ sole motivation. Karl Tonks, the chairman of the Association of Personal Injury Lawyers (APIL) summed up this highly regrettable state of affairs:  “What the OFT calls ‘dysfunctional’ and ‘inefficient’ actually reveals a host of grubby practices to line insurers’ own pockets, to the tune of an extra £225 million on car insurance premiums last year.”

This is the truth that the insurance industry dare not allow to be uttered. Premiums keep rising and insurers blame everyone but themselves for what is happening. The reality is that real change – to the consumer’s benefit – entails a root and branch reappraisal of how the insurance industry operates. This, in turn, entails confronting the unpalatable fact that here, in a core service sector which affects us all, backhander Britain is alive and well.

Thankfully, the OFT report begins the process of tackling this. It reveals the shoddy practices that those of us who practise in this area see all too often, including the ramping up of repair costs and the charge of hiring replacement vehicles. In effect, insurers collude with vehicle hire companies and repairers (for example, paint and car parts suppliers) to inflate charges, and why? Because they’re in for kickbacks – and because higher costs for a claim will help to dent a rival’s profitability.

The OFT report is welcome, but any investigation by the Competition Commission won’t begin until autumn and may then take up to two years. Why not, in the interim, a voluntary abolition across the board of the insurer practices uncovered by the OFT?

We can be justly proud of Queen Elizabeth II and last weekend’s Royal Jubilee, but Backhander Britain is not something to proud of. Hats off to the OFT for lending significant authority to those of us who’ve had enough.