> ### CIVIL PROCEDURE PRE-ACTION PROTOCOLS

> ### CLINICAL NEGLIGENCE PROTOCOL

> ### WHY THIS PROTOCOL?

> ### MISTRUST IN HEALTHCARE DISPUTES

> 1.1 | The number of complaints and claims against hospitals, GPs, dentists and private healthcare providers is growing as patients become more prepared to question the treatment they are given, to seek explanations of what happened, and to seek appropriate redress. Patients may require further treatment, an apology, assurances about future action, or compensation. These trends are unlikely to change. The Patients’ Charter encourages patients to have high expectations, and a revised NHS Complaints Procedure was implemented in 1996. The civil justice reforms and new Rules of Court should make litigation quicker, more user friendly and less expensive.
> 1.2 | It is clearly in the interests of patients, healthcare professionals and providers that patients’ concerns, complaints and claims arising from their treatment are resolved as quickly, efficiently and professionally as possible. A climate of mistrust and lack of openness can seriously damage the patient/clinician relationship, unnecessarily prolong disputes (especially litigation), and reduce the resources available for treating patients. It may also cause additional work for, and lower the morale of, healthcare professionals.
> 1.3 | At present there is often mistrust by both sides. This can mean that patients fail to raise their concerns with the healthcare provider as early as possible. Sometimes patients may pursue a complaint or claim which has little merit, due to a lack of sufficient information and understanding. It can also mean that patients become reluctant, once advice has been taken on a potential claim, to disclose sufficient information to enable the provider to investigate that claim efficiently and, where appropriate, resolve it.
> 1.4 | On the side of the healthcare provider this mistrust can be shown in a reluctance to be honest with patients, a failure to provide prompt clear explanations, especially of adverse outcomes (whether or not there may have been negligence) and a tendency to ‘close ranks’ once a claim is made.

> ### WHAT NEEDS TO CHANGE

> 1.5 | If that mistrust is to be removed, and a more co-operative culture is to develop – healthcare professionals and providers need to adopt a constructive approach to complaints and claims. They should accept that concerned patients are entitled to an explanation and an apology, if warranted, and to appropriate redress in the event of negligence. An overly defensive approach is not in the long-term interest of their main goal: patient care; patients should recognise that unintended and/or unfortunate consequences of medical treatment can only be rectified if they are brought to the attention of the healthcare provider as soon as possible.
> 1.6 | A protocol which sets out ‘ground rules’ for the handling of disputes at their early stages should, if it is to be subscribed to, and followed – encourage greater openness between the parties; encourage parties to find the most appropriate way of resolving the particular dispute; reduce delay and costs; reduce the need for litigation.

> ### WHY THIS PROTOCOL NOW?

> 1.7 | Lord Woolf in his Access to Justice Report in July 1996, concluded that major causes of costs and delay in medical negligence litigation occur at the pre-action stage. He recommended that patients and their advisers, and healthcare providers, should work more closely together to try to resolve disputes co-operatively, rather than proceed to litigation. He specifically recommended a pre-action protocol for medical negligence cases.
> 1.8 | A fuller summary of Lord Woolf’s recommendations is at Annex D.

> ### WHERE THE PROTOCOL FITS IN

> 1.9 | Protocols serve the needs of litigation and pre-litigation practice, especially – predictability in the time needed for steps pre-proceedings; standardisation of relevant information, including records and documents to be disclosed.
> 1.10 | Building upon Lord Woolf’s recommendations, the Lord Chancellor’s Department is now promoting the adoption of protocols in specific areas, including medical negligence.
> 1.11 | It is recognised that contexts differ significantly. For example: patients tend to have an ongoing relationship with a GP, more so than with a hospital; clinical staff in the National Health Service are often employees, while those in the private sector may be contractors; providing records quickly may be relatively easy for GPs and dentists, but can be a complicated procedure in a large multi-department hospital. The protocol which follows is intended to be sufficiently broadly based, and flexible, to apply to all aspects of the health service: primary and secondary; public and private sectors.

> ### ENFORCEMENT OF THE PROTOCOL AND SANCTIONS

> 1.12 | The civil justice reforms will be implemented in April 1999. One new set of Court Rules and procedures is replacing the existing rules for both the High Court and county courts. This and the personal injury protocol are being published with the Rules, practice directions and key court forms. The courts will be able to treat the standards set in protocols as the normal reasonable approach to pre-action conduct.
> 1.13 | If proceedings are issued it will be for the court to decide whether non-compliance with a protocol should merit sanctions. Guidance on the court’s likely approach will be given from time to time in practice directions.
> 1.14 | If the court has to consider the question of compliance after proceedings have begun it will not be concerned with minor infringements, e.g. 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.

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