Certifying domestic violence: who should foot the bill Tom Watson?

Family Law|November 30th 2016

This morning I stumbled across a story on the popular Moneysavingexpert.com website on the topic of legal aid that made me rather annoyed.  And I say that as someone who isn’t usually afraid of standing up for legal aid, social justice and levelling criticism where I think it is properly due.

But this piece went way beyond what could be in my opinion regarded as proper criticism. Wordily headlined Revealed: GPs charging domestic violence survivors £100+ to sign legal aid forms, the article explores this supposed scandal.

What the writer is implying is that because the fee is not recoverable under the NHS, it is wrong for GPs to charge for the production of medical reports in order to demonstrate domestic abuse and be granted legal aid. In a video elsewhere in the site, Editor-in-Chief Martin Lewis adds his two penn’orth for good measure with a similar claim about the apparently widespread practice of GPs charging for the certification of mental health issues when people have fallen into debt and are struggling to cope.

The Deputy Labour Leader, Tom Watson, who is generally demonstrating all the qualities that the Labour leader lacks at the moment, here holds a similar view and wants you to sign a petition banning those charges. His campaign has been dubbed #ScrapTheFee.

It’s a reaction that’s perfectly understandable but in my view its misconceived. Even before the drastic cuts to legal aid, it was frequently the case that medical reports had to be paid for.

You might be surprised at my support for GPs, since once upon a time I was a legal aid lawyer myself. I worked from a converted cobbler’s shop in East Leeds for years and daily came across desperate people who needed public funding. I practiced throughout the many years when most people qualified for legal aid (perhaps with a contribution) – except for the very well off who just didn’t need it –  and obtaining medical reports for a case was very much part of the service that I provided as a legal aid solicitor.

Sometimes I couldn’t get legal aid for a case without a medical report – and then, with a client sitting doe eyed in front of me, I had no real choice but to take a chance. I used to accept what a client told me and write confidently to a doctor for the back-up evidence in a medical report. On occasion it didn’t come back as I expected. The client might have fooled me but hadn’t fooled the doctor: and as the medical report wasn’t funded by legal aid, and the doctor, having seen and examined the client then spent time reporting to me, would usually insist, that I, the legal aid lawyer who wasn’t getting paid a penny by the client, also paid his fee. And I had no choice when that occurred. I once did write to the Law Society about it, but was curtly reminded of my professional duty in instructing an expert. So I didn’t get paid for my work and I had to pay the medical report costs too, often of an expensive consultant surgeon. Therefore, if anyone knows exactly what it feels like to be out of pocket representing clients who can’t afford to pay my fees and/or pay for a doctor’s time, I certainly do.  But that fact doesn’t change my mind about this situation.

Blog readers will know that legal aid was all but extinguished on April Fool’s Day 2013. Yes that’s a date you couldn’t forget in a hurry. Instead, now one of the only avenues open to people in need of family legal aid is providing proof of domestic violence. If they can prove that their ex was prone to abuse then they might receive public funding for their case from the Legal Aid Board. Some have questioned this provision, arguing that it effectively incentivises exaggeration and spin. And I agree. There you have the problem in a nutshell.

Since this provision came into effect, my firm has seen more clients than it might otherwise have done defending allegations of such abuse from their legally aided other. And what these clients have told us satisfies me that a great deal of these may well have been exaggerated and spun precisely to get legal aid in order to instruct a solicitor.

So my question is why have these arbitrary requirements at all?  Why is an abused woman (or a man, because they get abused too) more entitled to legal aid than a woman or man who has not?  In these desperate days, the poor are being encouraged to heat up a case at the same time as calls come across the board from the Judiciary downwards to take the heat out of a case. But if you want a solicitor and you know how to play the game, that’s sadly what you need to do. And yes I understand that many cases involve people who genuinely have been abused and genuinely do need help. But that’s why under this totally arbitrary system, a report is required.

There are various ways of satisfying the requirement for proof. You can, for example, send in a report from a doctor certifying that they have examined you and they are satisfied that you have been on the receiving end of domestic violence. The issue highlighted by the Moneysavingexpert.com reporter is very simple: doctors receive no funding from the NHS for these examinations and the resulting reports, so they charge. But as we have discussed, this is nothing new.

Furthermore, it is claimed that fees vary widely from practice to practice. The article cites amounts ranging from £30 all the way up to £175. Even at the low end, I agree, that is a lot to pay if you are unemployed and claiming benefits: but it is, I’m afraid, entirely in keeping with our current ‘money before justice’ approach to legal issues. And if it was up to me, I’d do away with the requirement completely.

But Labour Deputy Leader Tom Watson has been blunt too, writing on his site:

Let me be clear. I know that the vast majority of GPs would baulk at the idea of charging for that letter. They are kind, compassionate and caring people who chose medicine as a profession because they want to help.

He added:

“No GP should charge victims of domestic abuse for a letter they need to access legal aid. It’s unfair. It’s immoral. And it has to stop.”

Respectfully Tom, why? Why shouldn’t doctors charge for the work they do, if they receive no funding from the government? They are hard-pressed professionals as I see it, whose time is becoming ever more valuable in an era of one NHS crisis after another. If someone who claims to have been abused presents themselves, a GP must examine the patient, consult their records, form a professional judgement and commit it to paper. That opinion is something on which they can get sued. It isn’t a mere form filling exercise. They should get fairly paid for doing their job. As they regularly did before 1/4/13.

My answer to the problem is therefore more straightforward. The arbitrary requirements to prove some form of abuse to get legal aid should be ditched. Instead, why not launch a petition to get legal aid reintroduced for all desperate people across the board? They clearly need it.

You can read the article on Moneysavingexpert.com here.

Author: Stowe Family Law

Comments(5)

  1. Andrew says:

    Mr Watson’s reference to the “victims” is classic question-begging in the correct meaning of that expression: assuming what has to be proved.

    The refusal of legal aid to the other party is a breach of Article 6 waiting for a declaration of incompatibility, isn’t it?

  2. spinner says:

    Change the record Marilyn this legal aid your all so hard done by narrative is repetitive and I bet you yourself did very well out of it.

    • Marilyn Stowe says:

      Dear Spinner
      There you go again! For the umpteenth time I’m not hard done by and haven’t said I am. I’m in a very different position 36 YEARS LATER to how I started out. What I said is first that professionals who do work should be fairly paid for it. They shouldn’t be expected to work free of charge. It’s wrong to suggest they should.
      I referred in my post to the various times when I (then a young working mum/lawyer with an overdraft and a hefty mortgage to fund) was doing legal aid cases and still had to pay out the doctor myself for asking for a report hoping I’d be able to proceed but couldn’t get the dr to back the client’s version. I am making the point the requirement to pay for a medical report in advance of legal aid isn’t new.
      Sorry if that explanation of a lawyer paying out for no gain to help a poorer client doesn’t fit your non stop diatribe against lawyers but that person was me. I havent changed all that much either despite my change in circumstances being senior partner, and despite all your best efforts to suggest otherwise.
      Keep commenting!
      Regards
      Marilyn

      • spinner says:

        They should be expected to work at a rate consummate to the value they provide to society, the same as everyone else. If they feel their “talents” would be better compensated elsewhere then great but they are not going to be helped by your constant whining about how it’s all so unfair and you are all such hero’s. You have a few years left before you will be largely replaced by technology, so enjoy and consider this the feast before the famine.

      • spinner says:

        sixthtone.com/news/china%E2%80%99s-courts-look-ai-smarter-judgments

        “However, Zhou ruled out the possibility that humans would ever give way to machines in making judgments.” – lol of course it won’t 😉

        A pilot program was started in the UK last month to electronically file all documents, effectively to build up a large data set for the AI systems to process. In China they started this in 2014 so the AI has had two years worth of data to process for them to then deploy the system at some scale. We are obviously some years behind the Chinese but I suspect we will catch up quickly.

        Even if the UK courts refuse to get up to date for many years as a litigant if you could consult such a system and get a say 90% accurate assessment of the outcome of your case before going to court many people would choose not to go to court or seek legal services in the first place.

        This is how to provide a truly ubiquitous and accessible legal system for all which I assume as your telling me is your goal.

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