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BMJ  2004;329:239 (24 July), doi:10.1136/bmj.329.7459.239


PERSONAL VIEW The legal aid folly that damages us all

In medical matters it is surprising how often the law, in Mr Bumble's words, proves to be "an ass," as two recent prominent cases demonstrate.

The first was a claim against manufacturers of the MMR (measles, mumps, and rubella) vaccine. As long ago as 1994 legal aid was granted to a group of parents who were opposed to immunisation (and who were strong believers in homoeopathy), for an action claiming that MMR causes brain damage, epilepsy, arthritis, and autoimmune disease. After Andrew Wakefield's 1998 Lancet article ( Lancet 1998;351: 637[CrossRef][ISI][Medline]), the number of plaintiffs was expanded and the claim concentrated on the allegation that MMR causes autism. Legal aid for the claim was eventually withdrawn in September 2003 on the grounds that the action was unlikely to succeed. By then it had cost the taxpayer £15m.

This team was quite clearly not adequately qualified to investigate possible causes of autism

Legal aid in claims for damages for personal injury, which is granted by a committee of lawyers, is mainly restricted to claims for medical negligence and is normally granted only if there is a good chance of success. In the case of MMR it was granted to finance scientific research to find out if a case existed. In fact it had been known for many years that epidemiological research showed no evidence of any link between MMR and autism. Further, in 1998, at the request of the claimants, the Committee on the Safety of Medicines re-examined the claim that MMR causes autism and duly found that the evidence did not support it. Nevertheless, legal aid was continued.

What did the lawyers who grant legal aid think they were doing? At vast public expense a team of 16 lawyers was established that included three people with basic science degrees but no experience of postgraduate or scientific research. This team was quite clearly not adequately qualified to investigate possible causes of autism, an issue which has so far baffled medical science. Indeed, the Legal Services Commission finally admitted that it was "inappropriate" to have granted legal aid and that the courts were not the place "to prove new medical truths."

The second example is the claim for damages against hospitals for unauthorised retention of tissues and internal organs after autopsy. Formerly, these were often retained for research. Relatives' consent was not always obtained, although clearly obtaining consent was best practice. In 2001 the public learnt that samples from thousands of children had been retained in the pathology departments of a number of hospitals without their parents' knowledge. There was a huge outcry, particularly about a pathologist at Alder Hey Children's Hospital in Liverpool, who had retained more than 2000 samples from hundreds of dead children ( BMJ 2001;322: 255[Free Full Text]). The then health secretary described it as one of the most shocking events he had ever heard of.

Lawsuits followed. One was settled by the payment of £5m compensation out of NHS funds. Another, on behalf of more than 2000 relatives, is still in train. In an interim ruling last year, a judge capped the plaintiffs' litigation costs at £500000, compared with their claim that they would amount to £1m. Costs of £1.45m had already been incurred. The legal basis for the action includes a claim for negligence, breach of statutory duty, interference with a body, and infringement of human rights.

No one has stopped to ask what possible rational grounds there can be for awarding damages at all. To dare to question the outcry about the "body parts scandal" is almost to commit sacrilege. Burial rites are, of course, an old established observance and play an important part in allowing relatives and friends to express their grief. It was wrong, certainly insensitive, not to obtain relatives' consent.

In the past, parents were generally ready to allow the use of samples for medical research. Yet we have now gone back to the primitive rituals of pre-classical times as if our human rights are infringed if any part of a body is missing. The press invariably refers to internal organs and tissues as "body parts," as if a child's body has been dismembered—indeed, some pathologists have received hate mail accusing them of murdering children. The result is that the recruitment of pathologists has declined and waiting lists for organs are becoming longer.

Both cases demonstrate that we live in a climate of increasing irrationality, as the fashion for alternative medicine confirms. They also show that the law promotes this trend. The public suffers twice over: it pays millions for legal aid and the health service has to pay huge damages it can ill afford.

Dick Taverne, Liberal Democrat peer

chairman of Sense About Science (www.senseaboutscience.org.uk/), and former barrister (QC) dick@taverne.me.uk

Competing interests: DT is chairman of the monitoring board of AXA Sun Life, chairman of a consultancy concerned with good governance in South East Asia, president of the Research Defence Society, and chairman of the charity Alcohol and Drug Addiction Prevention and Treatment Ltd.