The New Clinical Negligence Pre-Action Protocol

The pre-action protocol for the resolution of clinical disputes has changed, along with several other pre-action protocols.  The changes came into force on 6 April 2015.  At the present time you will not find the new protocol easily on the MOJ website (the previous protocol is most easily located), but you will find it here from page 40 onwards:

A summary of the most notable changes follows:

1.  ‘Letter of Notification’

A new creation features at paragraph 3.10 of the protocol.  Following the medical records stage and (in many cases) receipt of an “initial supportive expert opinion”, and prior to the letter of claim, the claimant “may wish to” send a letter of notification to the defendant and NHSLA or relevant defence organisation.

On receipt of any letter of notification the defendant should:

  1. Acknowledge receipt within 14 days;
  2. Identify who will be dealing with the matter and to whom any Letter of Claim should be sent;
  3. Consider whether to commence investigations and/or obtain factual and expert evidence;
  4. Consider whether any information could be passed to the claimant which might narrow the issues in dispute or lead to an early resolution of the claim; and
  5. Forward a copy of the Letter of Notification to the NHSLA or other relevant medical defence organisation/indemnity provider.

Diligent NHS trusts often commence their own legal investigation during the NHS complaints procedure, or upon receipt of a request for medical records which contains sufficient detail to enable them to understand the issues which the claimant is seeking to pursue.

However, whilst the protocol provides that the prospective defendant should merely ‘consider’ commencing their own investigation and gathering evidence, the benefit to the claimant in sending a letter of notification may come further down the line.  Paragraph 3.12.2 of the protocol provides that the court may question any request by the defendant for an extension of time if a letter of notification was sent but did not prompt an initial investigation.

A template letter of notification is supplied at annex C1 of the protocol.

2.  Letters of Claim and Letters of Response

Letters of claim and letters of response should now state which disciplines of expert evidence have been relied upon.  Curiously, the letter of response should also state whether the expert report relates to breach of duty or causation, or both.  There is no such provision requiring the claimant to provide this additional detail.

3.  Stocktake

Another new creation is the ‘Stocktake’ which features at paragraph 6.1.  In short, after the other steps of the protocol have been followed, “the parties should review their positions before the claimant issues court proceedings”.  It is hard to imagine that representatives will not think about their case if resolution cannot be achieved pre-action!

The second, final, and almost certainly the most important provision of the stocktake comes at paragraph 6.1.2.  It provides that the parties should seek to prepare a chronology of events which identifies the facts or issues that are agreed and the extent of any disputed facts and issues.

4.  Duty of Candour/Apologies

A new stated aim of the protocol appears at paragraph 2.2(b):

“to provide an opportunity for healthcare providers to identify whether notification of a notifiable safety incident has been, or should be, sent to the claimant in accordance with the duty of candour…………”

In short, the consideration of a claim at the pre-action stage affords the defendant a further opportunity to consider if an “unintended or unexpected incident” resulting in harm has occurred.  If such an incident has occurred then ‘the duty of candour’[1] provides that all of the facts should be given to the patient about the event and that an apology should be forthcoming.   This could greatly assist the claimant in pursuing their claim.

It is of course a criminal offence for the health service body not to notify the patient of the safety incident and offer an apology.  

Encouraging the offering of an apology is mentioned again, this time outside of the obligation under the duty of candour at paragraph 2.2(l).  To my mind an apology is distinct from an admission or finding of breach of duty and the payment of damages, which are really the only functions of a tortious claim.  It is certainly noteworthy that the protocol encourages the defendant to go further than their ordinary tortious obligations.

5.  Litigants in Person

Claimants and defendants do from time to time act as a litigant in person.  Paragraph 1.8 provides that a litigant in person will be expected to follow the protocol, however, the represented party should send a copy of the protocol to the litigant in person as soon as possible.

6.  ADR

Arbitration is mentioned as a possible alternative to litigation in relation to clinical disputes for the first time.  More longstanding alternatives of mediation and early neutral evaluation are rarely utilised and it is hard to imagine that arbitration will be any more popular.

There are numerous other amendments and additions, but the above outlines those which I consider to be the most significant.

[1] Regulation 20(4) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014


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