The Pre-Action Protocol for the Resolution of Clinical Disputes
The protocol came into place after recommendations from the Clinical Disputes Forum, a multi-disciplinary body formed in 1997 following Lord Woolf’s ‘Access to Justice’ Reforms.
The aim was to encourage “a climate of openness when something has ‘gone wrong’ with a patient’s treatment”, and to ensure all parties are given enough information at an early stage to allow for early resolution of medical negligence disputes. It was hoped resolving claims at an earlier stage, without court proceedings being issued, would save both time and money.
The pre-action protocol includes:
- A code of good practice that all parties involved in a claim should follow before court action
- A timed sequence of events that all parties are expected to follow
However, it should be noted that:
- Following the protocol does not change deadlines that apply to bringing a claim
- Court proceedings can be instigated if the deadline to do so is imminent
The protocol brings with it added responsibilities, of course. If any party does not comply with the process, the Court will take this into account when making decisions about who will pay the legal costs of a claim, and how much should be paid.
What is the pre-action protocol and how does it work in practice?
A patient may complain to the healthcare provider if they are unhappy with the standard of the care they received. If the treatment was carried out through the NHS, this will follow the NHS Complaints Procedure.
Private healthcare providers should have a similar complaints process . However, following a complaints procedure does not affect the deadlines that apply to bringing a claim, and will not lead to compensation.
If a patient would like to bring a claim for compensation, they should contact a solicitor. At this point the legal process begins, and the protocol comes into play.
Step 1: Requesting medical records
When a claim is being considered, the request for medical records takes a standard form and alerts the healthcare provider about concerns being investigated.
Under GDPR legislation, the healthcare provider must provide the medical records within one calendar month of the request. There is no cost for this.
If the medical records are not provided within one calendar of the request, then the patient or their solicitor can then make an application to Court for them to be provided.
Step 2: The Letter of Notification
Once in receipt of the medical records and following their analysis, an expert may be instructed to provide their initial opinion on the case. Should the expert be supportive, then a Letter of Notification may be sent to the Defendant. These are not compulsory but the Protocol suggests it as it encourages an early investigation by the healthcare provider and potentially early admissions where appropriate.
The Letter of notification alerts the healthcare provider to the fact there is a potential claim being investigated and advises them that a Letter of Claim is likely to be sent as a breach of duty and/or causation has been identified. How detailed the letter needs to be depends on the circumstances and how much information has been obtained at that stage.
The healthcare provider must acknowledge receipt of the Letter of Notification within 14 days of receipt and advise who will be dealing with the matter and to whom any Letter of Claim should be sent to. They may consider to being investigations at this stage.
Step 3: The Letter of Claim
Following further analysis of the medical records and an expert opinion on the case, or following the Letter of Notification if one has been sent, the solicitor will send a Letter of Claim.
The level of detail to be included will depend upon the circumstances, but it will need to include:
- A summary of the facts
- Allegations of negligence
- Injuries suffered including any present condition and future prognosis
- Any financial loss
- Details of any experts wo have provided evidence
- Confirmation of the funding of the claim
Sufficient information must be included to allow the healthcare provider to commence their investigations. The Letter of Claim must refer to any relevant documents obtained and provide copies of them, if they are not already in the healthcare provider’s possession.
Step 4: The Letter of Response
After the Letter of Claim, the healthcare provider has 14 days to acknowledge it, and then they have four months from the date of the Letter of Claim to write and set out their reasoned response. In some circumstances, they may ask for an extension of time to send the Letter of Response.
The response should set out clearly what is admitted by them, and what is disputed.
Where an allegation is disputed, they should set out an explanation of why this is the case, and where appropriate, put forward its own version of events.
At this point the healthcare provider may make an offer of compensation to settle the claim.
Alternative dispute resolution
The parties may be able to resolve the dispute without the involvement of the Court and should try to do so where possible.
Alternative dispute resolution can include discussion and negotiation between the parties, or more formal methods such as mediation and arbitration, where a neutral third party will assist to resolve the dispute where appropriate.
The Court will generally require the parties to only issue Court proceedings as a last resort.
However, the use of alternative dispute resolution is not mandatory, and it is recognised that the parties cannot be forced to use it – but the court may take this into consideration when deciding the legal costs to be paid.
Issuing court proceedings
If no resolution is reached, then Court proceedings are issued. However, this should not be within four months of sending a Letter of Claim, to allow the parties sufficient time to try to resolve the matter (unless the deadline for issuing Court proceedings means that this is necessary).
It should be noted that even after Court proceedings are issued, the Court will expect the parties to continue to try to settle the matter by alternative means.
