The pre-action protocol for the resolution of clinical disputes—6 April 2015 onwards
The pre-action protocol for the resolution of clinical disputes—6 April 2015 onwards

The following Personal Injury guidance note provides comprehensive and up to date legal information covering:

  • The pre-action protocol for the resolution of clinical disputes—6 April 2015 onwards
  • Background
  • Main changes
  • The protocol
  • Protocol steps
  • Extension of time
  • Offers

For the pre 6 April 2015 version, see Practice Note: The Pre-Action Protocol for the Resolution of Clinical Disputes—pre-6 April 2015 [Archived].

Background

When the clinical disputes protocol was first introduced and given Lord Woolf’s concern about the adversarial nature of clinical negligence litigation, the protocol included a lot of explanatory material about the aims and objectives of the reforms generally. Much of this material was subsequently thought ineffective and so was removed in an effort to streamline the protocol and reinforce its use as a procedural tool.

The clinical disputes protocol retains a strong emphasis on communication between parties, early investigation and on resolution prior to the commencement of any proceedings. It also reflects the unique complexities of clinical disputes; both with regard to the patient/clinician relationship and with regard to the use of experts.

The protocol now makes specific reference to the duty of candour imposed on healthcare providers by the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, SI 2014/2936. It also includes consideration of an apology as a separate specific objective.

See Practice Note: The duty of candour.

Main changes

The main changes to the clinical disputes protocol in 2015 were:

  1. removal of most of the explanatory paragraphs which served as an introduction to the original protocol

  2. removal of clinical governance and clinical risk paragraphs

  3. introduction