An updated clinical negligence protocol is now in force in Northern Ireland as of 1 October 2021 and will be welcomed by legal practitioners practicing in this area. The Protocol for Clinical Negligence Litigation (the Protocol) will revoke the previous 2012 protocol of the same name and its initial draft, the 2009 Pre-Action Protocol for Clinical Negligence Litigation.
The Protocol will accurately reflect how this area of practice has developed in recent years and address important case management issues such as expert meetings, which the 2012 protocol did not adequately deal with. It also seeks to promote timely and efficient resolution of claims within 48 months (save in exceptional circumstances) from the date of the issue of the writ.
By way of a summary, the key objectives of the Protocol (which are set out in full at paragraph 3 of the Protocol) are as follows:
- Early communication between patients and healthcare providers of any perceived concerns about medical care or treatment.
- Disclosure of sufficient information.
- Timely provision of relevant medical records by healthcare providers.
- Encouraging alternative dispute resolution.
- Promotion of “cards on the table” approach.
Whilst there is clear acknowledgement that the Protocol will not be a “one size fits all” model, it is intended as a statement of best practice and should normally be adhered to in all cases.
The Protocol will introduce a number of key considerations for clinical negligence practitioners to adhere to in respect of pre-action procedures, pleadings, alternative dispute resolution, expert evidence and the involvement of the Master/Judge. By way of a brief overview/summary:
The pre-action procedures will follow a two stage process:
“Firstly, there will be a record request from the healthcare provider(s)/record-holder(s)”; and
“Secondly when records have been obtained and independent expert evidence has been secured, the intended plaintiff should serve a Letter of Claim in accordance with the Protocol.”
Proceedings should not be issued until at least four months post receipt of the Letter of Claim.
The Protocol also draws attention to the complaints procedure which exists with healthcare providers, stating at paragraph 13 that:
“These procedures are designed to provide patients with an explanation of what happened and an apology, if appropriate. They are not designed to provide compensation for cases of negligence. However, patients might choose to use these procedures if their only, or main, goal is to obtain an explanation, or to obtain more information to help them decide what action might be appropriate.”
The Protocol reflects Order 18 of the Rules of the Court of Judicature (Northern Ireland) 1980, as amended. Pleaded particulars should be based on expert evidence. Defence practitioners should note that defences must be positively pleaded. Paragraph 30 of the Protocol states that:
Alternative dispute resolution
The Protocol places a greater emphasis on alternative dispute resolution (ADR) and the court may require evidence that ADR has been considered.
Parties must notify each other 35 days prior to exchanging reports of the number and type of reports it is proposed will be exchanged.
The Protocol states that expert meetings should be arranged within 28 days of exchange of reports. The agenda and should be drafted by the plaintiff’s solicitor and sent to the defendant’s solicitor not less than 35 days prior to meeting. A Scott Schedule as to areas of agreement/disagreement should be prepared within seven days of meeting. A practice direction focusing entirely on expert evidence has also been implemented.
Role of Master/Judge
Paragraph 32 of the Protocol states that all Solicitors/Counsel attending a clinical negligence review “are expected to have full knowledge of the action.” There will be penalties where the attendance is not in compliance with the Protocol. All clinical negligence writs will be listed for directions at 13 months post-issue of writ and parties are encouraged to agree directions in advance.
The Protocol certainly supports a cards on the table approach to clinical negligence claims which should be welcomed by both plaintiff and defence legal representatives. The days of each side holding their cards close to their chest until a late stage certainly seem to be drawing to a close. There is discussion however over implementing cost sanctions to further strengthen the impact of the Protocol and to address non–compliance. The Protocol is not intended to encourage applications for costs for every breach, but costs and other sanctions will be seriously considered by the court for flagrant or on-going breaches.
We hope that this clear and updated Protocol will encourage early exchange of information, engagement between the parties and earlier resolution of cases.