During Covid, we saw the very worst of pressure on the NHS: staff at their very best to provide care in impossible circumstances and patients at their most vulnerable trying to navigate their healthcare. In the clinical negligence field, we knew the impact this would have on our clients' cases as doctors from all disciplines were finding it difficult to manage their day job, let alone their medico-legal work.
The Covid protocol 2020, borne out of much discussion between stakeholders such as the Society of Clinical Injury Lawyers, Action against Clinical Accidents and NHS Resolution, provided a scheme that removed limitation concerns providing certain criteria were met. Figures provided by NHSR indicated that there was a reduction of 572 litigated cases in the first year alone. Savings to the public purse have been calculated at some £32.6m - a significant sum of money saved through collaboration.
It was clear that whilst the level of clinical negligence litigation is largely back to pre-pandemic figures, there is a lot that we can take forward with the principle of working together to reduce cost, avoid delay and create efficiencies wherever we can.
The Clinical Negligence Claims Agreement 2024 is built on a broad agreement of positive behaviours from both claimant and defendant to benefit both parties, whether that is a claimant who concludes their claim quicker, or the defendant that successfully rebuts the claim and it is no longer pursued.
The underlying principle is dialogue and conversation between the parties and to try to settle claims without the need to issue proceedings if at all possible. I accept that will not be the case for all claims and sometimes the only way to avoid an unending impasse is to get the claim within the court timetable, but it is in everyone’s best interests, particularly the claimant's, to avoid lengthy, stressful and costly litigation if at all possible.
There are examples in the agreement of best practice in relation to disclosure and communications. It is not designed to be definitive and it is not the finished product. As matters progress and issues arise on both sides, we will bend and flex the agreement to provide further clarity to parties where we can.
What is also pleasing to see is the recognition that, wherever possible, the letter of apology should contain the lessons for patient safety from the incident. These are often the most important part of the process for our clients.
I look forward to continuing the work that SCIL, AvMA and the NHSR are doing in maintaining a collaborative approach to claims management, a fundamental shift in focus since I started to practising more years ago than I care to mention.
Sharon Allison is partner and head of medical injury at Ashtons and chair of SCIL (Society of Clinical Injury Lawyers)
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