Dispute Resolution – Pre-Action Protocol for the Resolution of Clinical Disputes from the UK Ministry of Justice
This Protocol is intended to apply to all claims against hospitals, GPs, dentists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence. It is not intended to apply to claims covered by
(a) the Pre-Action Protocol for Disease and Illness Claims;
(b) the Pre-Action Protocol for Personal Injury Claims;
(c) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents;
(d) the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims; or
(e) Practice Direction 3D – Mesothelioma Claims
The Protocol is intended to be sufficiently broad-based and flexible to apply to all sectors of healthcare, both public and private. It also recognises that a claimant and a defendant, as patient and healthcare provider, may have an ongoing relationship.
It is important that each party to a clinical dispute has sufficient information and understanding of the other’s perspective and case to be able to investigate a claim efficiently and, where appropriate, to resolve it. This Protocol encourages a cards-on-the-table approach when something has gone wrong with a claimant’s treatment or the claimant is dissatisfied with that treatment and/or the outcome.
This Protocol is now regarded by the courts as setting the standard of normal reasonable pre-action conduct for the resolution of clinical disputes.
The Protocol sets out the conduct that prospective parties would normally be expected to follow prior to the commencement of any proceedings. It establishes a reasonable process and timetable for the exchange of information relevant to a dispute, sets out the standards for the content and quality of letters of claim and sets standards for the conduct of pre-action negotiations.
The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. Where one or more parties consider the detail of the Protocol is not appropriate to the case, and proceedings are subsequently issued, the court will expect an explanation as to why the Protocol has not been followed, or has been varied.