New Clinical Negligence Claims Agreement

On 27 August 2024 the new Clinical Negligence Claims Agreement was implemented – this was agreed between NHS Resolution and key Claimant stakeholders such as AvMA and the Society of Clinical Injury Lawyers (SCIL). It is the successor to the Covid Protocol and retains many aspects of this previous Protocol.

The Agreement can be found here. 

Broadly, the intention of the Agreement is to increase collaboration, keep cases out of litigation where reasonably possible and reduce costs.  Although it is not a formal “contract”, it should be followed.  Indeed, it is proposed that parties should be allowed to refer to the Agreement if there are subsequently costs arguments.

For those dealing with NHS cases I strongly suggest that you read through it, but I summarise the key elements for NHS bodies below.

1. Limitation/extensions of time

   • Subject to being a party to the agreement, cases in which the limitation period was previously suspended under the Covid Protocol will have limitation automatically suspended until 27 August 2025 unless specific limitation extension dates have been agreed.  Further extensions can be agreed on a case by case basis.  The expectation is further limitation extensions will be agreed provided the claimant explains what progress is being made.
   • In all other cases limitation extensions must be agreed on a case by case basis with the expectation that a reasonable extension of up to 6 months will be agreed.
   • For Inquests the parties have 8 weeks from the conclusion of the Inquest to notify of their intention to bring a civil claim and if so limitation is suspended for 9 months from the date the Coroner delivers the conclusion.

2. Disclosure

   The Agreement states that defendants should disclose all duty of candour letters, Datix, SI, PSIRF or similar investigations and complaints documentation.  Such disclosure is usually done by the Trust often before NHS Resolution are involved.  

3. Exchange of evidence/settlement

   The Agreement states that parties should actively engage in the consideration of mutual Without Prejudice exchange of liability evidence before proceedings are issued.  Following service of the Letter of Response parties should review their positions and consider whether there should be a “stock take” discussion to attempt to narrow the issues.

4. Saying sorry/patient safety lessons

   Section 12 of the Agreement states that where liability is admitted a meaningful letter of apology should be provided as soon as possible to the claimant if not already provided.  If the apology is likely to be delayed because of further internal reviews then a time estimate should be given.  Such letter should also identify any patient safety lessons that have been learnt from the case and any measures that have been put in place as a result.

Conclusion

I suggest that all those working in NHS claims are aware of this Agreement.  The intention is to encourage positive behaviours from both claimant and defendant organisations, ensure early settlement where suitable and reduce costs being spent on formal Court proceedings.