Clinical negligence: Agreement reflects cultural change
A successor agreement to the Covid-19 clinical negligence protocol has been launched , which encourages the NHS to provide a “meaningful letter of apology” where liability is admitted and identify any patient safety lessons.
The Clinical Negligence Claims Agreement 2024 was developed by NHS Resolution, in collaboration with the Society of Clinical Injury Lawyers (SCIL) and Action against Medical Accidents (AvMA).
The agreement extends the limitation period where it was already extended under the Covid-19 clinical negligence protocol by a further 12 months from 27 August 2024, the date of the latest agreement.
Both parties must “in the spirit of collaboration, ensure they provide full disclosure” both before and after issue of court proceedings.
“Early disclosure will give the parties the opportunity to narrow the issues in the claim at an early stage and thereby reduce the costs of investigating claims wherever possible and/or appropriate.
“The claimant should disclose as early as possible all relevant documentation which supports their special damages claim to allow for early claim quantification.”
Before proceedings are issued, the parties should “endeavour to actively engage in the consideration of mutual without prejudice exchange of liability evidence”.
On communication, the agreement said lawyers should be able “to engage with their counterparts by telephone/MS Teams and/or email with a view to resolving disputes effectively and efficiently”.
There should be “reciprocal acceptance of encrypted emails by all parties” and claimant solicitors should note that NHS Resolution has specifically requested that correspondence is sent by email only.
The parties should also “wherever possible” agree to the exchange of witness evidence and expert evidence by encrypted email.
Under the agreement, if proceedings are to be issued, claimant lawyers agree to provide NHS Resolution with “reasonable notice (28 days if possible)”, so the parties can explore dispute resolution.
“The purpose of the notification is to support the desire to consider dispute resolution prior to the issue of proceedings”.
In the absence of settlement of both liability and quantum, the parties should “review their positions and consider whether there should be a ‘stock take’ discussion” to identify if it is possible to resolve the claim.
In cases where liability is admitted, the NHS should provide a “meaningful letter of apology” as soon as possible to the claimant.
This “should also identify any patient safety lessons that have been learnt from the case and any measures that have been put in place as a result”.
Simon Hammond, director of claims management at NHS Resolution, said the 2024 agreement built on the 2020 protocol and aimed to “further improve” practices.
“The fact the parties have been able to agree a successor agreement reflects the cultural change we have witnessed in how clinical claims are managed.”
Sharon Allison, chair of SCIL, said the agreement encouraged “apologies where appropriate” and reflected that “harmed individuals and their families often want to ensure that similar errors are avoided in the future”.
Lisa O’Dwyer, medico-legal services director at AvMA, added that it was the “first time” that a litigation process had put the emphasis on NHS trusts to demonstrate to injured or grieving parties what had been learnt.
NHS Resolution said the agreement would be reviewed every 26 weeks to ensure it remained “effective and responsive to the needs of all parties involved in clinical negligence cases”.
