What is the Pre-Action Protocol for the Resolution of Clinical Disputes?

The Pre-Action Protocol for the Resolution of Clinical Disputes sets out a code of good practice which the parties to a medical negligence dispute are expected to follow before Court proceedings are issued. The Protocol encourages a climate of openness and encourages the parties to find the most appropriate way of resolving the dispute. It also seeks to reduce delay and costs and the need for Court proceedings.

When does the Pre-Action Protocol for the Resolution of Clinical Disputes apply?

The Protocol applies to all medical negligence claims and clinical disputes. It applies to all aspects of the health service, both primary and secondary, and applies to both the public and private sectors. 

A Claimant is, however, permitted to commence Court proceedings without complying with the Protocol if, by reason of complying with it, his claim may be time-barred and/ or the patient’s position needs to be protected by early issue.

What are the requirements of the Pre-Action Protocol for the Resolution of Clinical Disputes?

Good practice commitments

The Protocol sets out good practice commitments for healthcare providers and patients and their advisers. These are to ensure that: 

  • key staff employed by healthcare providers are properly trained to deal with disputes;
  • disputes are handled consistently;
  • adverse outcome reporting systems are set up;
  • adverse incidents and complaints are treated positively in order to improve services to patients in the future;
  • patients know how to raise their concerns or complaints;
  • patient records are stored efficiently and effectively;
  • patients are advised when something “goes wrong” and an explanation and further information is provided;
  • patients and their advisers report any concerns and dissatisfaction as soon as is reasonable;
  • the full range of options is considered when something “goes wrong”;
  • the healthcare provider is informed when the matter has been concluded to the satisfaction of the patient.

Health records

Where a patient or his adviser makes a request for medical records they are required to provide sufficient information to alert the healthcare provider where an adverse outcome has been serious or had serious consequences and be as specific as possible about the records which are required. The request should be made using the prescribed form which is annexed to the Protocol. 

Third party healthcare providers are expected to co-operate in respect of any requests for copies of health records kept by them. 

Copy records should ordinarily be provided within 40 days of such a request. There are limits on the amount a healthcare provider can charge for providing copy records. 

If a healthcare provider fails to provide the medical records within 40 days, it is open to the patient or their adviser to apply to the Court for an order for pre-action disclosure.

The letter of claim

The patient is expected to notify the healthcare provider of his claim by sending a letter of claim prior to commencing Court proceedings.

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For more information on:

  • The response to the letter of claim
  • Expert evidence
  • Alternative dispute resolution
  • What happens if a party does not act in accordance with the Protocol?