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.  

The Protocol specifies what information the letter of claim should contain. Claimants are encouraged to use the template annexed to the Protocol.

The response to the letter of claim

The healthcare provider has 14 days from the date of receipt of the letter of claim to acknowledge receipt of it. In doing so the healthcare provider should identify who will be dealing with the matter. 

The healthcare provider has 3 months from the date of the letter of claim to provide a reasoned answer.  

If the claim is admitted the healthcare provider is required to say so in clear terms. If only part of the claim is admitted the healthcare provider is required to make it clear which issues are admitted and which are denied and why. Any admissions will be binding on the healthcare provider. 

If the claim is denied the healthcare provider should explain why and, where appropriate, put forward its own version of events. 

If the healthcare provider relies on additional documentation it is required to provide copies of such documents. 

If the patient has made an offer to settle, the healthcare provider should respond to that offer in the same letter, preferably with reasons. 

The healthcare provider may make its own offer to settle at this stage. Any such offer should be accompanied by any supporting medical evidence and/ or any other evidence relating to the value of the claim which the healthcare provider may be in possession of. 

Where the healthcare provider admits liability the parties should aim to agree a reasonable period of time to resolve the value of the claim.

Expert evidence

If expert evidence is required it is for the parties to decide whether it is appropriate to jointly instruct an expert and whether reports are disclosed sequentially or by exchange.

Alternative dispute resolution

The parties are required to consider alternative dispute resolution as an alternative to Court proceedings. If the parties agree that alternative dispute resolution is suitable they should try to agree which form to adopt. The Protocol sets out some of the forms of alternative dispute resolution which the parties might decide to adopt. This includes making a complaint under the NHS Complaints Procedure.  

The Court may require the parties to provide evidence that alternative means of resolving the dispute were considered. The Courts take the view that Court proceedings should be a last resort. However, they recognise that parties cannot and should not be forced to enter into any form of alternative dispute resolution.

What happens if a party does not act in accordance with the Protocol?

The Court has a very wide discretion when it comes to awarding costs. When determining costs the Court will take into account the conduct of the parties including whether the parties have complied with the Protocol.  

When considering whether a party has complied with the Protocol the Court will be concerned about whether the parties have complied in substance and is unlikely to be concerned with minor or technical shortcomings. The Court will also consider the proportionality of the steps taken compared to the size and importance of the matter, will take account of the urgency of the matter and will look at the effect of non-compliance on the other party. 

A single minor breach by one party will not exempt the other party from following the Protocol.