Are you following the amended pre-action protocol for clinical negligence disputes?

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The original pre-action protocol was introduced in 1998, and while the new version preserves the basic structure and timescales, it now focuses more on the exchange of information, resolution opportunities, and implications of failing to comply. As before, it aims to make litigation a last resort but does it achieve its aim?

An amended pre-action protocol for the resolution of clinical disputes came into effect on 6 April 2015. The original pre-action protocol was introduced in 1998, and while the new version preserves the basic structure and timescales, it now focuses more on the exchange of information, resolution opportunities, and implications of failing to comply.

The aim

As before the Protocol is aimed at claims against hospitals, GPs, dentists and other healthcare providers, both NHS and private. It continues to set out steps to be completed prior to proceedings and its aims remain:

  • Maintaining and/or restoring the patient/healthcare provider relationship in an open and transparent way.
  • Reducing delay and ensuring costs are appropriate.
  • Resolving as many disputes as possible without litigation.

However it now also expressly “encourages a cards-on-the-table approach”, whereby sufficient information and understanding of all parties’ perspectives is shared, to permit an efficient investigation and, if appropriate, resolution.

Compliance

The Protocol now expressly refers to the importance of compliance. It confirms that it is “now regarded by the courts as setting the standard of normal reasonable pre-action conduct”. In addition it clarifies that if either party should fail to comply, then the court may impose sanctions based on whether the substance of the relevant principles and requirements have been adhered to. Notably, following recent reforms and caselaw, it is highlighted that, while the effect of non-compliance will be considered, it is unlikely that minor and/or technical shortcomings will.

Health records

The information to be provided by a claimant in a request for medical records has been revisited, and pre-action disclosure applications should only follow a healthcare provider failure to provide records or an explanation for any delay within the 40 day provision period (where the defendant may face costs sanctions). In addition, on receipt, the claimant is expressly required to create and maintain a paginated and indexed bundle of records.

Rehabilitation

The need for both parties to consider and discuss whether rehabilitation treatment (as detailed in the Rehabilitation Code) or other measures will assist has also been updated.

Letter of Notification

Although not mandatory, a new Letter of Notification from a claimant to a defendant has been introduced. Following a review of the relevant records and, if appropriate, initial expert evidence, the Letter will clarify whether a claim is likely to be pursued and provide an early indication of possible allegations. A copy of the Letter should also be sent to the relevant medical defence organisation, indemnity provider or NHSLA.

Significantly the early provision of information will enable the defendant to consider initiating its own investigations into liability sooner and/or providing information which may narrow the issues and/or lead to an earlier resolution. (Typically defendant investigations have not commenced until a Letter of Claim is received. As responses are required within 4 months, this inevitably results in less investigation time than that available to a claimant.) Notably, if such a Letter is received by a defendant but not acted on, subsequent requests for extensions of time may be questioned.

Settlement offers/Alternative Dispute Resolution (ADR)

The Protocol still details information that should be included in a Letter of Claim and Letter of Response. However it now also states that parties should consider making genuine Part 36 offers and/or ADR suggestions within these documents too.

An offer to settle made by the claimant should usually be supported by a medical report, a schedule of loss and supporting documentation. Alternatively offers for the defendant to accept a percentage of liability can be considered, and while arguments as to what damage was caused and its monetary value may still be in play, the claimant may still receive costs benefits for the early offer in due course. Likewise, the protocol requires a defendant to respond to any such offers and encourages Part 36 offers or counter-offers within its Response too.

If a resolution is not reached but the parties wish to explore this further, a reasonable period in which to do so can be agreed. Alternatively when proceedings are to be commenced and specific issue directions should be discussed. Notably if a claimant is aware it will take six months or more to decide when and how the claim will proceed, the defendant should be kept informed.

Significantly whilst it is acknowledged no party can or should be forced to participate in ADR, a silent response to an invitation may be considered unreasonable (potentially causing costs penalties). In addition, if court proceedings are issued, the parties may be required to provide evidence to the court that ADR was considered.

Stocktaking

A completely new insertion into the Protocol is the requirement to “stocktake”. Where no resolution has been reached at the end of the protocol period, both parties should review their positions before proceeding are issued. If proceedings remain unavoidable, both parties should cooperate and progress a number of early case management related tasks.

Conclusion

The revised Protocol has existed for six months and compliance is key to meet the court’s expectations and avoid cost penalties. The amendments seek to encourage greater information sharing, and potentially offer defendants an earlier opportunity to investigate liability. Clearly the emphasis remains on early amicable resolutions, but an expressly required pre-proceedings review should refocus minds too. Only time will tell whether strategies are adapted as a result, but don’t be the party to find out the hard way, too late.

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