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A summary of key developments relating to claims management; the Mental Health Bill; personal injury discount rates in the UK and Ireland; patient safety; personal protective equipment; supply chain cyber incidents; and costs management.
The Clinical Negligence Claims Agreement 2024
The Clinical Negligence Claims Agreement 2024 (the Agreement) came into effect on 27 August 2024. Building on the COVID-19 Clinical Negligence Protocol (the Protocol), the aim of the Agreement is to further promote the collaboration between parties developed through application of the Protocol.
The Agreement was developed by NHS Resolution together with the Society of Clinical Injury Lawyers (SCIL), Action against Medical Accidents (AvMA) and other key stakeholders.
Key aspects of the Agreement include:
- Where a limitation extension was granted under the Protocol this is automatically extended for 12 months from 27 December 2024, under the Agreement. Further extensions can be agreed on a case by case basis.
- An expectation that limitation extensions of up to six months will be granted.
- Reasonable requests for extension of court deadlines will be granted and only refused in exceptional cases.
- An expectation there will be full disclosure at both pre-issue and post-issue of proceedings, including the provision of all relevant documentation on quantification of claim.
- An obligation to explore without prejudice mutual and unilateral exchange of liability evidence at the pre-action stage.
- Promotion of good communications between the parties and in particular encouraging use of the telephone.
Contact: Christopher Malla
The Mental Health Bill
Announced in the King’s Speech on 17 July 2024, the Bill aims to “modernise the Mental Health Act 1983”. The Bill advances the majority of the recommendations for reform made in December 2018, following the independent review of the Act led by Professor Sir Simon Wessley.
Following that review, the previous government had published a draft Mental Health Bill in June 2022, which had undergone pre-legislative scrutiny. However, a final version of the Bill had not been introduced for parliamentary review prior to the General Election.
Contact: Rob Tobin
Related item: Mental Health Bill: briefing note
Personal injury discount rate (PIDR) in England and Wales
The review of the PIDR in England and Wales by the new Lord Chancellor commenced on 15 July 2024.
In accordance with the Damages Act 1996 (as amended by the Civil Liability Act 2018) the Lord Chancellor is required to carry out the review and determine whether the PIDR will be changed or remain as it is within 180 days of the review starting. An announcement will therefore follow before or on 11 January 2025.
Contact: Christopher Malla
New +0.5% personal injury discount rates announced in Northern Ireland and Scotland
On 26 September 2024, the Government Actuary’s reports covering Scotland and Northern Ireland confirmed that the personal injury discount rate (PIDR) of +0.5% will apply to both jurisdictions. The rates came into effect on 27 September 2024.
The previous rate for Northern Ireland of -1.5% was set in March 2022, in accordance with the provisions of the Damages (Return on Investment) Act (Northern Ireland) 2022. The previous rate in Scotland was set in September 2019 at -0.75%.
Contacts: Amanda Wylie and Rory Jackson
Related items:
- New +0.5% personal injury discount rates announced in Northern Ireland and Scotland
- The personal injury discount rate in Scotland: expect a single rate
- Northern Ireland and Scotland launch personal injury discount rate calls for evidence
Personal injury discount rates in Ireland to remain at 1% and 1.5%
The Minister for Justice has accepted the recommendations of an expert group that there should be no change to the personal injury discount rate in catastrophic injuries cases in Ireland. The discount rate will continue at 1% for future care costs and 1.5% for future financial loss.
The Minister has indicated that work is underway on drafting regulations to officially set the discount rate at these levels. The Minister’s announcement, and the anticipated introduction of the relevant regulations, brings long-awaited and welcome certainty to plaintiffs and defendants involved in catastrophic injury litigation.
Contact: Joanne O’Sullivan
Related item: Catastrophic injury cases: discount rates in Ireland to remain at 1% and 1.5%
Patient Safety Commissioner consultation
On 24 July 2024, the Patient Safety Commissioner launched a public consultation on a set of draft principles, the aim being to put patient safety, and patients, at the heart of healthcare.
The intention, once finalised, is for the ‘Principles of Better Patient Safety’ to be a guide for those in leadership positions within healthcare, proactively applying these to minimise risk and reduce avoidable harm.
Kennedys submitted a response to the consultation, which closed on 6 September 2024. Here, we consider the consultation and three key themes, which stand out to us.
Contact: Ed Glasgow
Related items:
- Patient Safety Commissioner consults on draft ‘Principles of Better Patient Safety’ to help guide and deliver change
- Kennedys Patient Safety Forum: a focus on Martha’s Rule
Martha’s Rule
On 27 May 2024, NHS England announced that 143 hospitals will be part of the first phase of implementation of Martha’s Rule (an automatic right to obtain a second opinion when hospital care is of concern and a patient’s condition is deteriorating). The patient safety initiative is to be in place in these locations by March 2025. In collaboration with Martha’s parents, NHS England is developing materials that will explain and raise awareness of the initiative in hospitals.
Contact: Ed Glasgow
Related items:
- Martha’s Rule: early intervention protecting patients and clinicians
- Kennedys Patient Safety Forum: a focus on Martha’s Rule
Gender bias in PPE
Calls for personal protective equipment (PPE) to be designed for female workers are long standing, and the Health and Safety Executive (HSE) as the workplace regulator has recently acknowledged ill-fitting PPE as an issue.
To ensure compliance, duty holders may have to seek out a range of alternative suppliers or change their procurement practices to ensure a wider selection of suitably inclusive equipment. This means avoiding suppliers who do not provide a range of sizes and seeking to ensure their suppliers have properly assessed the appropriateness of their equipment for everyone.
Manufacturers and suppliers must also play their part in providing a full range of PPE for men and women at a similar cost.
Contact: Sally Hancock
Related item: Gender bias in PPE
Supply chain cyber incidents
The ICO’s provisional decision to impose a fine on a software provider has confirmed the landscape of liabilities and responsibilities for data processors in supply chain cyber incidents. This finding highlights the accountability of data processors.
On 7 August 2024, the ICO announced its provisional decision to impose a £6 million fine on Advanced Computer Software Group Ltd (Advanced) following a 2022 ransomware attack that severely disrupted NHS and social care services.
Advanced, a key IT and software service provider for national organisations including the NHS, handled vast amounts of personal information as a data processor on behalf of these entities. The ransomware incident exploited a customer account which lacked multi-factor authentication (MFA), leading to widespread service disruption and the exfiltration of personal data belonging to 82,946 individuals. The ICO concluded that Advanced failed to secure its healthcare systems adequately.
Contact: Arran Roberts
Related item: Supply chain cyber incidents: The ICO's fine, and future of data processors’ accountability
Claimant’s cost budget criticised by judge as “unrealistic and disproportionate”
Jenkins v Thurrock Council [09.09.24]
This case involved a costs management dispute in a personal injury claim where the claimant's budget was significantly reduced by the court. The claimant was also ordered to pay the defendant’s costs of and occasioned by the costs management hearing.
The claimant sought damages exceeding £200,000 due to an injury sustained while working as a refuse collector. The injury led to both physical and psychological injuries.
The claimant served a budget to a trial totalling £1,195,754.26 and a second budget through to a second costs and case management conference of £730,396.28. The defendant’s budget was £383,417.20.
The judge held: “My conclusion is that the claimant had presented and maintained an unrealistic and disproportionate approach to his estimated costs in the context of the demands and requirements of this case.”
Whilst the costs budgeting regime is largely working effectively in clinical negligence cases, the principles from this case apply equally across all claims and the judgment is a timely reminder that proportionality, taking opportunities to reflect on costs, and negotiation, are among the key aspects central to the costs budgeting process.
Contact: Lewis Thompson
Healthcare
United Kingdom