Paula Sparks is a barrister and senior legal worker with Avma.
Talk to specialist medical negligence solicitors and most will tell you that one of the most frustrating problems they face is a shortage of competent junior counsel.
In a recent survey of referral panel solicitors undertaken by charity group Action for Victims of Medical Accidents (Avma), 71 per cent of respondents said there was a definite shortage of specialist counsel in the sector and only 27 per cent felt barristers were very well versed in medicine.
While panel solicitors regard the barristers they instruct as proficient, with a degree of specialisation at least equal to their own, the small pool they have to choose from means those who are instructed often have long waiting lists. As one panel solicitor said in the survey: "There are very few barristers I would feel confident instructing in medical negligence cases. Because the choice is so limited it leads to the accumulation of cases with only a few."
Medical negligence litigation is taxing. It demands high level technical expertise – practitioners must have a firm grasp of medical issues and also be a master of substantive law and advanced litigation techniques. But other niche sectors of law are also demanding and complexity alone does not explain why there is such a perceived shortage of junior barristers competent to take medical negligence cases in their stride.
The answer is in part historical and reflects the trend toward solicitor specialisation. As the profession shifts towards the practice of niche law, solicitors are developing expertise more quickly and often assume a level of competence previously reserved for counsel.
However, the Bar does not encourage barristers to set up specialist practices early in their careers and by the time a practitioner has developed a civil practice and gained the experience necessary to specialise, it will not be long before he or she is ready to consider taking silk.
So it is vital that junior barristers become familiar with medical issues as early as possible in their careers. While solicitors have been using the post-qualification training opportunities provided by Avma and others, barristers seem reluctant to get involved in courses with solicitors.
Reflecting comments made by many, one of the panel solicitors remarked: "There is a need to involve the Bar in further training although one's impression is that there is a distinct lack of interest."
But it may not be "lack of interest" which is putting barristers off the training courses. Instead it may be a reluctance to reveal their lack of knowledge in front of solicitors for fear that this would compromise their expert status. In addition, the day courses do not always slot easily into a barrister's workload.
These problems are being addressed by the Professional Negligence Bar Association and Avma, both of which offer affordable medical courses at a time convenient to most barristers. Avma is also promoting a series of in-house medical courses for chambers and courses exclusively for barristers, to serve those interested in medical training (see also box on page 14).
Avma has compiled a list of barristers who specialise in medical negligence, have attended training courses and have advised on medical negligence cases, making it easier to identify suitable and experienced counsel. It has also set up a barristers' group where issues and common problems in medical negligence can be discussed.
Responsibility must ultimately lie with the Bar to take these opportunities and refine skills to meet the expectations of specialist solicitors who demand the highest standards of medical and legal competence from counsel.