The Pre-Action Protocol for the Resolution of Clinical Disputes
The Pre-Action Protocol for the Resolution of Clinical Disputes was introduced to enable clinical negligence disputes to be resolved without the need for the courts to be involved, thereby saving time and money.
The protocol encourages openness and information sharing, and aims to reduce the stress which patients experience when they are involved in a clinical dispute.
The Protocol is in effect a set of guidelines for the procedures to be followed when a clinical dispute arises involving a hospital, GP, dentist or other healthcare professional. It is intended to be “a code of good practice” which parties should adopt when a dispute arises and provides a framework for the steps that should be taken before court proceedings are commenced.
Non-compliance with the Protocol can lead to costs sanctions being imposed, so the importance of the Protocol should not be underestimated.
It is helpful for those who are bringing a clinical negligence claim to understand how the Protocol operates, so that legal costs are reduced, delays can be avoided and court action is used as a last resort.
Sending a Letter of Claim
The Protocol requires a ‘Letter of Claim’ to be sent as soon as practicable. The letter should provide a summary of the facts, the main allegations of negligence, summarise the injuries sustained, provide details of the patient’s condition and prognosis and supply information regarding any financial loss they have suffered as a result of the negligence.
The purpose of the Letter of Claim is to give the healthcare provider sufficient information to allow them to investigate the negligence claim and identify the potential value of the claim.
The healthcare provider should acknowledge the Letter of Claim within 14 days and will then have four months to investigate. At the end of this period, they must provide a Letter of Response. This should specify whether legal responsibility is admitted or denied.
These letters are intended to promote a ‘cards on the table’ approach to the dispute, which encourages parties to settle at an early stage before legal costs have escalated.
Obtaining medical records
Medical records must be requested using a standard form and disclosed within 40 days. If this time limit is not adhered to, the requesting party may make an application to the court. The Court has the discretion to award costs against the defaulting party for non-compliance. Provision has also been made for photocopying and postage costs, which are charged in accordance with the Access to Health Records Act 1990.
By controlling not only how requests are made, but also the time and expenses involved in obtaining records, the Protocol ensures that costs are reduced and delays are avoided.
The Protocol recognises that in clinical negligence claims expert evidence may be required to deal with breach of duty, causation and the patient’s condition and prognosis.
Due to the complex nature of clinical negligence claims it is not always clear at the outset what expert medical evidence will be required. The Protocol therefore does not attempt to impose restrictions or guidance on obtaining expert evidence.
The flexibility of this approach allows the parties to decide what experts are appropriate and consider whether their instruction should be joint, taking into account the costs involved.
Alternative dispute resolution
The Pre-Action Protocol for the Resolution of Clinical Disputes requires the parties to consider whether Alternative Dispute Resolution (ADR) could be used to avoid court action. This includes negotiation, early neutral evaluation and mediation. If ADR is not considered costs sanctions for non compliance may be imposed.
NHS complaints procedure
The NHS Complaints Procedure is intended to ensure patients are given an explanation as to why the care they have received has resulted in a particular outcome. While patients cannot be compensated under this procedure, for some a simple explanation and an apology is sufficient.
The complaints procedure is also helpful for people who are thinking about making a clinical negligence compensation claim and would like further information about the care they received.