Monday 6 April saw the introduction of an updated ‘Pre Action Protocol for the Resolution of Clinical Disputes’ which seeks to govern behaviour on both sides of clinical disputes before the issue of proceedings. Mike McKenna, chair of FOIL’s (Forum of Insurance Lawyers) clinical negligence group, comments on the new protocol:
‘The new PAP for Resolution of Clinical Disputes has been a long time coming. A sub-committee sat in 2010, of which I was part with the NHS LA and other medical defence organizations, to review the original PAP from 1997. We recommended a number of changes, some of which were adopted immediately (the four month time limit for a letter of response) and another which I note has now been adopted (the letter of notification).
It is good to see that the language has changed - no mention of ‘mistrust’ - and specific references to reducing delay, ensuring costs are proportionate , involving the NHS LA and other medical defence organisations early, reference to the statutory duty of candour and specific reference to funding arrangements both pre and post-April 2013.
Much of the previous protocol remains. There are, however, two major amendments. The first introduces a letter of notification at clause 3.11 (notification before a formal letter of Claim, once initial records and expert evidence has been obtained) which is meant to signal to the defendant a need to investigate, as a letter of claim will follow.
The other is referred to as a ‘Stocktake’ at clause 6.1 which tells parties that they ‘should review their positions before the claimant issues court proceedings’; parties may have, by this stage , seen a letter of notification, a formal letter of claim and a letter of response. Some may see this as an extra costly layer, but it is designed no doubt to make parties think seriously about what other steps can be taken and what issues can be narrowed before the expensive step (certainly after the recent court costs increase) of issuing proceedings. Clause 1.7 indicates that ‘where either party fails to comply with this Protocol, the court may impose sanctions’. We’ll have to wait and see how strictly the court will interpret this.
This will hopefully lead to continued cooperation between parties, earlier and better exchange of information and a reduction in costs.’