Pro bono & community action: Freethcartwright gives succour in medical negligence travesty

Four years after the death of their daughter in a Leeds hospital, the Khan family has won the right to participate in an independent inquiry into her treatment, thanks to Freethcartwright partner Paul Balen.

In 1999, three-year-old Naazish Farooq Khan was admitted to St James’s Hospital with lymphoma. During chemotherapy she received a catastrophic potassium overdose and died shortly afterwards.

Only after her body was exhumed and extensive police inquiries were undertaken did the hospital admit liability for her death. However, because the Khans’ income was marginally above the prescribed limit, the family was not entitled to legal aid to be represented at the coroner’s inquest. Equally, the £7,500 paid out for the death of a child would have been completely swallowed up by the cost of legal representation.

Accordingly, at the High Court judicial review, Balen and Philip Havers QC worked on a conditional fee basis. When they were denied insurance, they proceeded pro bono.

The applicants argued that the Human Rights Act required that the Government set off an effective independent inquiry in which the relatives could participate. The Court of Appeal agreed, ruling that where a death was caused by agents or servants of the state, it was for the Government to organise an effective judicial inquiry, and it had to ensure that relatives were involved. The court commended Balen and Havers, saying “no praise can be high enough”.

The firm

Freethcartwright is a 54-partner Midlands firm with offices in Nottingham, Leicester and Derby. The lawyers in the product liability and personal injury practice devote the most time to pro bono activities.

Although Freethcartwright has no formal pro bono programme, Balen points out that “in reality we end up having to do a lot of pro bono work in often tragic cases”.

As one of the country’s foremost product liability experts, Balen is inundated with letters and emails from prospective clients asking that the firm act on a pro bono basis. Because of his expertise, he says, his time is often devoted to sifting through requests for legal advice and the preliminary stages of advice for people who are not strictly clients. These are often complex and lengthy matters for which acting pro bono is not an option.

“Frankly, it’s outrageous that the state doesn’t have appropriate provision for funding in such cases,” commented Balen.

The Lawyer verdict

Balen worked for the Khans for more than two years, and because of his efforts families now have the right to legal representation at an independent inquiry into the death of a loved one. The case has set a long overdue precedent for the treatment of the victims of negligence by the state. However, it is time for Freethcartwright to formalise its pro bono programme. Despite the commendable efforts of Balen and others like him, Freethcartwright’s pro bono work as a whole lacks focus. A pro bono coordinator could transform the worthy but disparate efforts of individuals into a robust and coherent programme.