Legal aid system for brain-damaged children deemed unjust

The legal aid rules in Scotland for families seeking compensation to care for brain-damaged children have been labelled as “unjust” by lawyers who are advocating for needed changes. Gordon Dalyell, the Scotland representative of the Association of Personal Injury Lawyers (APIL), emphasised the tragic circumstances surrounding these children, stating, “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.”

Currently, the system requires that the finances of both parents be considered when determining eligibility for legal aid, which many feel unfairly penalises families. Mr Dalyell expressed concern about this approach, saying, “Some families have to turn to legal aid to fund the costs of pursuing 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.”

APIL is advocating for a policy change that would consider only the child's resources in applications for legal aid. “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,” Mr Dalyell articulated. The organisation has submitted its response to a Scottish Government consultation aimed at modernising the legal aid system, calling for significant amendments to the existing laws.

Dalyell further pointed out the limitations of NHS Scotland, stating, “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.” He highlighted that parents' financial circumstances do not genuinely reflect their available resources, saying, “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.”

The urgency of reform is emphasised by the vulnerability of these children. “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.” Mr Dalyell concluded with a critical reminder, “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.”