Getting a hearing

Curbs on legal aid are jeopardising a group action by claimants injured in the womb by their mothers’ epilepsy drugs – and risking continued public ignorance of the dangers, says Teresa Pearce MP.

On October 26 the Legal Services Commission (LSC) withdrew legal aid from the Fetal Anti- Convulsant Litigation (FACL) claimants three weeks before trial.

The case had taken six years and cost the LSC around £3.25m. Understandably, the decision to deny the claimants a trial has distressed all those involved. The claimants are 100 injured children of epileptic mothers alleging that the epilepsy drug Epilim taken to control seizures in pregnancy (sodium valproate) caused injury. The claimants say that the manufacturer should be strictly liable under the European Product Liability Directive because its drug has a defect that has the capacity to cause injury to a fetus.

This article does not address the merits of the case, however as a vice chair of the epilepsy all-party parliamentary group I believe there are serious questions that arise from the issues in this case, particularly the lack of advice given to women with epilepsy who may want to start a family.

Whilst around 5,000 women with epilepsy become pregnant annually in the UK, a 2007 Epilepsy Action survey of women with epilepsy found that only 21 per cent received pre-conception counselling. Pre-conception counselling is very important for women with epilepsy because it is not enough to stop taking the drug once pregnant, and 50 per cent of pregnancies are unplanned. By then it is too late to prevent fetal injury, and the risk of seizures and maternal death increases.

The National Institute for Health and Clinical Excellence has proposed a new counselling indicator in the Quality and Outcomes Framework 2013/14. This is welcome, but it needs to include pre-conception counselling and be adapted to give women with epilepsy relevant information and advice.

We also need to reassess the risks associated with sodium valproate. A review into the safety of sodium valproate by the Medicines and Healthcare products Regulatory Agency in 2004 stopped short of advising that the drug should be avoided in pregnancy. However, it is time for another review which evaluates new evidence of the links between the drug and major congenital malformation (such as spina bifida), neurodevelopment problems (such as autism) and minor malformations.

We also need to look at the funding system which makes it increasingly difficult for multi-party cases like FACL to reach trial. The LSC’s budget for these cases is only £3m per year, but it is crucial for getting these cases into court, as commercial insurers show little interest inbacking such complex and ground-breaking litigation.

The justice secretary Ken Clarke recently announced the most drastic cuts to legal aid in its 60-year history, but those proposals take no account of multi-party cases like FACL. As well as frustrating claimants, this means that the court can exercise no regulatory function where it may need to.

I have tabled Early Day Motion 1035 asking the government to intervene and urging the LSC to review its decision to withdraw legal aid in this case. This already has significant cross-party support, with many Members raising the issue in the House and appealing to the justice secretary directly. The case has itself been adjourned until December 21 whilst the families’ lawyers investigate judicial review.

I believe the strength of feeling on both sides of the House should prompt the justice secretary and the LSC into action before then. Without such as response, the current legal action will have to be discontinued, with the result that the claims can never be brought again. Key evidence which would emerge at trial, and in which there is a strong public interest in disclosure, will remain confidential. After six years these families need the funding to go to trial, and they deserve to see the facts of their case decided in an open court.

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