New Pre-Action Protocol for Clinical Negligence Disputes: What we can Expect

By Paula Collins
3 April, 2018

Part 15 of the Legal Services Regulation Act 2015 (“the 2015 Act”) was signed into law on 30 December 2015 and has paved the way for the introduction of a new Pre-Action Protocol (“the Protocol”). The introduction of the Protocol will have far-reaching implications for the healthcare profession. Its purpose is to lay down a legal framework for the management of potential clinical negligence claims by placing new obligations on the parties involved. While the extent to which these obligations will go is not yet clear, health service providers should be aware that the Protocol will undoubtedly bring significant change and this can be expected sooner rather than later.

What are the objectives of the Protocol?
As outlined in the 2015 Act, the main objectives of the Protocol will be:

• To encourage parties to a possible clinical negligence action to find an early resolution to the allegations/enquiries being made;
• To encourage timely communication between parties to a possible clinical negligence action;
• To reduce the number of clinical negligence actions that commence;
• To help parties to a clinical negligence action identify the main issues in dispute;
• To encourage parties to settle clinical negligence actions in the early stages.

Which health service providers will be required to comply with the Protocol?
The 2015 Act defines a health service provider to include:

1. Medical practitioners;
2. Nurses and midwives;
3. Dentists, dental hygienists, nurses and technicians;
4. Optometrists and opticians;
5. Pharmacists, druggists and pharmaceutical assistants;
6. Certain professionals working in the health and social care profession including clinical biochemists, dietitians, medical scientists, occupational therapists, orthoptists, physiotherapists, podiatrists, psychologists, radiographers, social care workers and speech and language therapists.

What new changes can we expect?
While we continue to await the publication of the Protocol, we do not know what exactly it will stipulate. However, the 2015 Act indicates that it will facilitate the early assessment and management of potential claims by making provision in relation to the following:

• The disclosure of the claimant’s medical records/other records including time specifications and the form that the disclosure should take;
• The giving and acknowledgment of notifications of allegations/enquiries relating to potential clinical negligence actions including time specifications and the form that this should take;
• The disclosure of all material that is considered relevant to the allegations/enquiries being made;
• Agreement to submit a potential clinical negligence claim for dispute resolution other than through the courts.

What exactly will be required of the parties to a potential claim?
As previously outlined, while we await the publication of the Protocol in Ireland we have no indication of the precise pre-action requirements or time limits that will be imposed on parties to a potential claim. However, we can seek guidance from The Pre-Action Protocol for the Resolution of Clinical Disputes (“the English and Welsh Protocol”) which was introduced in England and Wales on 6 April 2015. This has set out strict requirements and time limits for engagement between parties to a claim and it is possible that a similar regime will be introduced in Ireland.

With regards to the disclosure of medical records, the English and Welsh Protocol sets out the specific form that the claimant’s request for disclosure should take. It also provides that the copy of the claimant's medical records should be provided by the professional within 40 days. If the professional unreasonably fails to provide these records within 40 days the court may impose costs sanctions if the matter goes to trial.

The English and Welsh Protocol requires a claimant to firstly notify the professional of the potential claim by way of a Preliminary Notice. This should be acknowledged by the professional or the professional’s representative within 21 days. Within six months of the Preliminary Notice, the claimant is then required to notify the professional of whether or not the claimant still intends to initiate proceedings.

If the claimant does still intend to initiate proceedings, the claimant should write to the professional by way of a Letter of Claim setting out the details of the claim and enclosing any relevant key documentation. This should be acknowledged within 21 days thereof and the professional has three months to investigate the potential claim. If necessary this time period may be extended on agreement with the claimant.

Once the relevant investigations are complete, the professional should respond by way of a Letter of Response and/or a Letter of Settlement. If necessary this time period may be extended on agreement with the claimant. If the professional denies the claim entirely and has not sent a Letter of Settlement, the claimant may then commence court proceedings. In all other circumstances, negotiations should commence with the aim of resolving the issues within 6 months. This time period can also be extended on agreement between the parties. If the parties still fail to resolve the issues, the claimant may then commence court proceedings.

Will there be Penalties for Non- Compliance?
Parties to a clinical negligence action must be mindful that once the Protocol is introduced, they may be penalised for non-compliance in any of the following manners

• The court may prevent the action from proceeding until the Protocol has been complied with;
• The Court may order the non-complying party to pay the costs/ part of the costs of the other party;
• A non-complying Plaintiff may be deprived of interest on the award or be subjected to a lower rate of interest than would otherwise apply;
• A non-complying Defendant may be ordered to pay interest on all/part of the Plaintiff’s award at a higher rate.

Conclusion
The introduction of the Protocol will be a welcome change in so far as it has potential to greatly reduce the number of clinical negligence proceedings being issued in Ireland. That being said, the onerous obligations that it will put on health service providers in respect of disclosure and timely communication will put further pressure on already limited resources. Nonetheless, it remains to be seen just how onerous these obligations will be!

For more information on the content of this Insight, please contact a member of our RDJ Healthcare team.