A new clinical negligence agreement has been established, marking a significant cultural shift in how the NHS handles claims.
The Clinical Negligence Claims Agreement 2024, developed collaboratively by NHS Resolution, the Society of Clinical Injury Lawyers, and Action against Medical Accidents, serves as a successor to the Covid-19 protocol. It notably encourages the NHS to issue meaningful apologies where liability is recognised and to identify any patient safety lessons learnt.
The agreement extends the limitation period previously set by the Covid-19 clinical negligence protocol by an additional twelve months from 27 August 2024. Both parties involved in claims are encouraged to collaborate by providing full disclosure both before and after court proceedings are initiated.
Early disclosure is expected to help narrow the issues in claims at an early stage, potentially reducing the costs associated with investigating these claims. Claimants are advised to disclose all relevant documentation supporting their special damages claims as early as possible to facilitate early claim quantification.
Before initiating proceedings, parties should actively engage in mutual exchanges of liability evidence without prejudice. The agreement specifies that communication should occur via telephone, MS Teams, or email to resolve disputes efficiently. Reciprocal acceptance of encrypted emails and agreements on exchanging witness and expert evidence electronically are also encouraged.
If proceedings must be initiated, claimant lawyers are asked to provide NHS Resolution with reasonable notice, ideally 28 days prior, to enable discussion of alternative dispute resolutions. This aims to consider settlement opportunities before formal proceedings commence.
In instances where liability is acknowledged, the NHS is expected to promptly provide a meaningful letter of apology to claimants, detailing any patient safety lessons and measures implemented as a result of the case.
Simon Hammond, the director of claims management at NHS Resolution, remarked that the 2024 agreement builds upon the 2020 protocol, reflecting a cultural change in managing clinical claims. Sharon Allison, chair of the Society of Clinical Injury Lawyers, emphasized the agreement’s support for appropriate apologies, noting that individuals and families often seek assurances that similar errors will be avoided in the future. Lisa O’Dwyer from Action against Medical Accidents highlighted the agreement’s focus on demonstrating lessons learned by NHS trusts to affected parties.
NHS Resolution has committed to reviewing the agreement every 26 weeks to ensure it remains effective and responsive to all parties’ needs in clinical negligence cases.
This agreement represents a forward-thinking approach in addressing clinical negligence, encouraging transparency, accountability, and a commitment to patient safety improvements within the NHS.
