What is the Clinical Disputes Forum and what does it do?

What is the Clinical Disputes Forum?

The Clinical Disputes Forum is a multi-disciplinary group of key people who work together to improve the clinical disputes procedures, and to cut the incidence of patients taking doctors and other health professionals to court to resolve legal disputes. It helps the parties to resolve disputes cost-effectively.

The Forum is a registered charity, formed in 1997 as a result of Lord Woolf’s Access to Justice inquiry which concluded 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 and assurances that other patients would be treated differently in the future; and not every patient wanted compensation.

Lord Woolf had many concerns with the system, particularly:

  • 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

A climate of openness was therefore recommended, together with a readiness by healthcare providers to provide explanations and a constructive approach to dealing with patients’ complaints and claims.

The Forum followed Lord Woolf’s recommendation 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. It comprises a number of key people working in the field of clinical negligence litigation and other clinical disputes, including:

  • Solicitors, barristers, judges
  • Medical professionals
  • The Deputy Health Service Ombudsman
  • NHS and private healthcare managers
  • Patient representatives
  • Legal Services Commission officials
  • The Departments of Health and Constitutional Affairs, and
  • The National Health Service Litigation Authority.

The Pre-Action Protocol for the Resolution of Clinical Disputes

The Forum’s first major, and most well-known, initiative is the Pre-Action Protocol for the Resolution of Clinical Disputes which was implemented under the Civil Procedure Rules in April 1999. This Protocol was prepared by a working party of the Forum who first carried out extensive consultations with most of the key stakeholders in the medico-legal system.

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 recommends steps which parties to a clinical dispute should follow when a dispute arises, and encourages the early exchange of information, and the resolution of disputes by alternative dispute resolution (ADR) 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.
Where a dispute comes to court, the Court may consider whether the parties complied with the Protocol when considering the issue of costs.

What else does the Forum do?

Working parties, led by a member of the Forum, work on a number of specific projects which have also included:

  • 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