Pre Action Protocol for the Resolution of Clinical Disputes.

Last month the Civil Justice Council (CJC) produced an interim report on the review of “Pre-Action Protocols” and launched a consultation on the subject of PAP reform. The consultation closes on 24 December 2021.

What are Pre-Action Protocols?

Pre-Action Protocols (“PAPs”) were introduced in 1999 with the aim of encouraging effective management of potential claims before the commencement of court proceedings. Early settlement was encouraged, the idea being to resolve claims at an early stage without court proceedings being necessary, and at minimum cost. 

The Clinical Negligence Protocol

The above review includes the Clinical Negligence Pre-Action Protocol, known as the “Pre Action Protocol for the Resolution of Clinical Disputes”. This protocol applies to all claims against hospitals, GPs, dentists and other healthcare providers. It sets out the procedure that parties are expected to follow before the issue of Court proceedings. In summary, it sets out a timetable for the exchange of relevant information, relevant to the dispute and how the parties should confirm their respective positions on that dispute.

One of the key parts of the protocol is for claimants to send a “Letter or Claim” to the defendant healthcare provider. This is a formal letter setting out initial details of the claimant’s case, including the alleged negligence and harm caused as a result. In accordance with the protocol, defendants are supposed to provide a full “Letter of Response” within four months of receipt of the Letter of Claim confirming whether liability is admitted or if denied, with reasons for that denial.

One of the issues in practice is that often defendants are not able to respond to a Letter of Claim within the four months deadline. This is often due to a number of factors, including delays in obtaining the independent medical evidence which is needed to advise on the care provided and alleged harm caused as a result.

Possibly the biggest advantage of the protocol is that there is the potential for a defendant to make admissions of fault at the Letter of Response stage, with claims then often being settled without the need and expense of Court proceedings. 

However, there are issues with the protocol, which need to be addressed, some of which are identified in the CJC’s report. Some of these include the following:-

• Delays with the Letter of Response - I have often experienced considerable delay with defendants providing a Letter of Response (even pre-pandemic). On occasion, when the defendant does provide a response, it often does not adequately respond to the allegations of fault, and further time is then spent trying to clarifying their position and the reasons for a denial of liability. This can be incredibly frustrating for claimants - the delay eats into the time period allowed before the deadline for starting Court proceedings, and delays provision of potential treatment and support that could help the injured claimant;
• Failures to respond to a Letter of Notification - the protocol specifies that parties may send a “Letter of Notification” at an early stage to invite liability. This is less formal than a “Letter of Claim” and can be sent when there is strong evidence of negligence at an early stage. For example, there may have been an internal investigation carried out by the hospital trust that has identified failings in the care provided. The Letter of Notification is designed to invite early admissions and therefore, save time and costs. However, it is now more common to see defendants refusing to investigate and respond after receiving a Letter of Notification, preferring instead to wait for a for a Letter of Claim;
• Disclosure of medical records - there are often delays in obtaining all records. Sometimes key records are missing following initial disclosure and a lot of time can be spent chasing providers for this information;
• Sanction for non-compliance - the CJC report indicates a belief that the Courts are inconsistent when enforcing pre-action protocols and sanctions for non-compliance. The most likely sanction here would be a costs penalty. The inconsistent approach appears to be the most common complaint made during the CJC’s preliminary consultation.

Reform

The CJC’s interim report outlines a number of possible options to consider for all pre-action protocols. One of these includes a “good faith” obligation on the parties to resolve or narrow the dispute. Another is a requirement to produce a list of agreed issues and issues in dispute, as part of a formal “stocktake” before the commencement of court proceedings.

It will be interesting to see the outcome of the consultation. Major reform seems unlikely but hopefully any changes will adequately address the above issues and refocus minds as to the aims and objectives of the pre-action protocols, including early resolution of claims.

Useful link to report and consultation survey