The Pre-Action Protocol for the Resolution of Clinical Disputes
- encourages a climate of openness when something has “gone wrong” with a patient’s treatment or the patient is dissatisfied with that treatment and/or the outcome.
- provides general guidance on how this more open culture might be achieved when disputes arise;
- recommends a timed sequence of steps for patients and healthcare providers, and their advisers, to follow when a dispute arises. This should facilitate and speed up exchanging relevant information and increase the prospects that disputes can be resolved without resort to legal action.
Written pre-Jackson-Mitchell the protocol states:
“1.13 If proceedings are issued it will be for the court to decide whether non-compliance with a protocol should merit sanctions……
“1.14 If the court has to consider the question of compliance after proceedings have begun it will not be concerned with minor infringements, eg a failure by a short period to provide relevant information. One minor breach will not entitle the “innocent” party to abandon following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions”.
Those paragraphs must now be read in the shadow of the Mitchell decision.
The Aims of the Protocol
2.1 The general aims of the protocol are –
- to maintain/restore the patient/healthcare provider relationship;
- to resolve as many disputes as possible without litigation.
2.2 The specific objectives are –
- to encourage early communication of the perceived problem between patients and healthcare providers;
- to encourage patients to voice any concerns or dissatisfaction with their treatment as soon as practicable;
- to encourage healthcare providers to develop systems of early reporting and investigation for serious adverse treatment outcomes and to provide full and prompt explanations to dissatisfied patients;
- to ensure that sufficient information is disclosed by both parties to enable each to understand the other’s perspective and case, and to encourage early resolution;
- to provide an early opportunity for healthcare providers to identify cases where an investigation is required and to carry out that investigation promptly;
- to encourage primary and private healthcare providers to involve their defence organisations or insurers at an early stage;
- to ensure that all relevant medical records are provided to patients or their appointed representatives on request, to a realistic timetable by any healthcare provider;
- to ensure that relevant records which are not in healthcare providers’ possession are made available to them by patients and their advisers at an appropriate stage;
- where a resolution is not achievable to lay the ground to enable litigation to proceed on a reasonable timetable, at a reasonable and proportionate cost and to limit the matters in contention;
- to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims.
Awareness of Options
- to ensure that patients and healthcare providers are made aware of the available options to pursue and resolve disputes and what each might involve.
Obtaining the health records if dealt with in paragraph 3.7 to 3.3.13 and Annex B consists of approved standard forms.
Paragraph 3.14 to 3.20 deals with the letter of claim and a template appears at Annex C1, and a template response is at Annex C2.
Paragraph 3.20 provides that letters of claim are not intended to have the same formal status as a pleading and nor should any sanctions necessarily apply if the letter of claim and any subsequent statement of claim in the proceedings differ.
Proceedings should not be issued until after four months from the letter of claim unless there is a limitation problem and/or the patient’s position needs to be protected by early issue. (Paragraph 3.21).
Early offers to settle are dealt with at paragraph 3.22 and 3.24 states that the healthcare provider should acknowledge the letter of claim within 14 days of receipt and should identify who will be dealing with the matter.
A reasoned answer should be provided within four months of the letter of claim and
- if the claim is admitted the healthcare provider should say so in clear terms;
- if only part of the claim is admitted the healthcare provider should make clear which issues of breach of duty and/or causation are admitted and which are denied and why;
- if it is intended that any admissions will be binding;
- if the claim is denied, this should include specific comments on the allegations of negligence, and if a synopsis or chronology of relevant events has been provided and is disputed, the healthcare provider’s version of those events;
- where additional documents are relied upon, eg an internal protocol, copies should be provided.
If the patient has made an offer to settle, the healthcare provider should respond in the response letter, preferably with reasons.
The provider may make its own offer to settle at this stage, either as a counter-offer to the patient’s offer or of its own accord. Any such offer should be accompanied by supporting medical evidence and/or any other evidence relating to the value of the claim which is in the healthcare provider’s possession.
If the parties reach agreement on liability but time is needed to deal with the value of the claim then they should aim to agree a reasonable period.
Expert evidence is dealt with at paragraph 4.
Alternative Dispute Resolution is dealt with at paragraph 5.1 to 5.4 which read as follows:
5.1 The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.
5.2 It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:
- Discussion and negotiation. Parties should bear in mind that carefully planned face-to-face meetings may be particularly helpful in exploring further treatment for the patient, in reaching understandings about what happened, and on both parties’ positions, in narrowing the issues in dispute and, if the timing is right, in helping to settle the whole matter especially if the patient wants an apology, explanation, or assurances about how other patients will be affected.
- Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of clinical negligence or an individual experienced in the subject matter of the claim).
- Mediation – a form of facilitated negotiation assisted by an independent neutral party. The Clinical Disputes Forum has published a Guide to Mediation which will assist – available on the Clinical Disputes Forum website at http://www.clinicaldisputesforum.org.uk.
- The NHS Complaints Procedure is designed to provide patients with an explanation of what happened and an apology if appropriate. It is not designed to provide compensation for cases of negligence. However, patients might choose to use the procedure if their only, or main, goal is to obtain an explanation, or to obtain more information to help them decide what other action might be appropriate.
5.3 The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of organisations that provide alternative dispute resolution services.
5.4 It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.