Sadly judgment was handed down on 13 March against the two severely ill Claimants in the Judicial Review of NICE Clinical Guideline 53. Even worse, it was not on the merits of the case – their solicitor and barrister appeared to have failed to grasp what the case was about, the solicitor failed to prepare it properly (being criticised publicly by the Judge), and the barrister hadn’t mastered the case at all, didn’t seem to be familiar with the extensive evidence supplied to him, made very few of the crucial points and abandoned much of the Claimants’ case without their instructions. The Claimants have initiated a formal complaint against both solicitors and barrister, who refused to accept instructions to appeal because NICE threatened them with a wasted costs order resulting from their conduct of the case, and the solicitors’ indemnity insurers have appointed separate solicitors to represent them.
The deadline for appeal was Friday 27 March and the Claimants were unable to find a firm of solicitors who could take over their case on legal aid at such short notice. Most firms are reluctant to undertake complex cases on legal aid because it doesn’t recompense them fairly for the amount of effort involved. Justice? What justice?
The Court was packed (it held upwards of 70 in the public gallery and the Court Full signs went up). There was quite a number of wheelchairs. You might imagine that the Court would wonder how behavioural therapies could cure people with physical disabilties! It’s as though Living Fooders were told that all they need to do is modify their illness beliefs – no need actually to carry out the Living Foods programme! It appears that common sense is not an essential qualification for the judiciary.
The ME community was extremely concerned at the ‘David & Goliath’ aspect of the situation (the Claimants had a solicitor and junior Counsel, plus the two severely ill and cognitively impaired Claimants. NICE had a QC at the top of his game, supported by an able junior Counsel, solicitors, and a panel of senior NICE staff; no (public) expense spared. The unfortunate result was that the Claimants’ arguments simply were not heard.