What is the Clinical Disputes Forum?

The Clinical Disputes Forum is a multi-disciplinary body, which was formed in 1997, as a result of Lord Woolf’s “Access to Justice” inquiry.  

Lord Woolf recognised that clinical negligence was “an area of peculiar difficulty”, in which reform could not be achieved by lawyers alone. He recognised that patients often wanted treatment to remedy the medical problem, an explanation of what went wrong, an apology, assurances that other patients would be treated differently in the future and only in some cases did they want compensation. 

Lord Woolf had many concerns with the system and in particular the following concerns: 

• Suspicion and mistrust between the parties, which often led to a lack of co-operation;
• Unmeritorious cases were pursued too often;
• Meritorious cases were defended for too long;
• Delays were greater than in other areas of litigation;
• Costs were frequently disproportionate to the value of the claims;
• The success rate was substantially lower than for other types of personal injury claims. 

Lord Woolf recommended a climate of openness, a readiness by healthcare providers to provide explanations and a constructive approach to dealing with complaints and claims. Lord Woolf also recommended the establishment of an “umbrella organisation” whose role would be to act as a “think-tank” and promoter of ideas for improving the resolution of clinical negligence disputes. In response to this the Forum was set up. 

The Forum is made up of a group of key people who work in the field of clinical negligence litigation and other clinical disputes. Its members include solicitors, barristers, judges, medical personnel, the Deputy Health Service Ombudsman, NHS and private healthcare managers, patient representatives and officials from the Legal Services Commission, the Departments of Health and Constitutional Affairs and the National Health Service Litigation Authority. 

The Forum was registered as a charity in 2000.

What does it do?

The aim of the Forum is to make practical improvements to procedures, so as to reduce the number of patients who have to go to Court to resolve their disputes with their doctors and other healthcare workers and to enable such disputes to be resolved cost-effectively. 

The Forum undertakes specific projects which are worked on by working parties led by a member of the Forum.  

The Forum has undertaken, or is currently working on, the following projects: 

• The Pre-action Protocol for the Resolution of Clinical Disputes;
• Interface between complaints and litigation;
• Discussion between Experts;
• Lump sum Damages;
• Mediation;
• Appeals from regulatory bodies;
• Private Medicine Regulation;
• Expedition v Delay: Splitting Liability and Quantum.

The Pre-Action Protocol for the Resolution of Clinical Disputes

The Forum’s first major, and most well-known, initiative was to draw up the Pre-Action Protocol for the Resolution of Clinical Disputes.  

The Protocol was prepared by a working party of the Forum who carried out extensive consultations with most of the key stakeholders in the medico-legal system before drawing it up.  

The Protocol sets out a code of good practice for the handling of clinical disputes. It encourages a climate of openness when something has “gone wrong” with a patient’s treatment or the patient is dissatisfied with the treatment provided and/ or the outcome of such treatment. The Protocol also recommends steps which parties to a clinical dispute should follow when a dispute arises and encourages the exchange of information at an early stage and the resolution of disputes by alternative dispute resolution procedures. 

The Protocol has the support of the Lord Chancellor’s Department, the Department of Health, the NHS Executive, the Law Society, the Legal Services Commission and many other organisations. 

The Protocol was implemented as part of the Civil Procedure Rules in April 1999.  

The Court may consider whether parties to a case complied with the Protocol when it comes to decide questions of costs, including who should pay who and how much they should pay.