New NHS agreement encourages apologies for clinical negligence

Written by Chris Salmon Share:

NHS clinical negligence claims agreement

NHS Resolution has worked with the Society of Clinical Injury Lawyers (SCIL) and Action against Medical Accidents (AvMA) to develop the Clinical Negligence Claims Agreement 2024 (resolution.nhs.uk).

The 2024 agreement replaces a provisional protocol established in 2020. The protocol aimed to improve the clinical negligence claims process during COVID-19. Like the original protocol, the new agreement aims to arrange better outcomes for injured patients and reduce legal costs.

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Clinical negligence compensation claims

A meaningful apology

For claimants, one of the most important parts of the agreement is the requirement to provide a “meaningful letter of apology” to claimants.

If the negligent NHS body has admitted liability, they should make a detailed apology as soon as possible. By acknowledging what happened, and taking responsibility for the negligence, the NHS defendant can help to rebuild trust between the parties. This is a valuable part of the healing process for the patient and their family, and can also help to resolve the claims process faster.

If the apology cannot be provided immediately, due to an ongoing investigation into what happened, the claimant should be informed, and they should be also told when the can expect to receive the apology.

The NHS should also give details of the patient safety lessons and improvements that have resulted from the negligence and the investigation into what happened.

Improving patient safety

The apology, and the process generally, should also focus on improvements to patient safety. Lessons should be learned, and changes implemented to prevent similar incidents.

The patient’s apology should set out specific changes in procedures, training and policies that have been (or will be made) to improve patient safety.

Better outcomes for injured claimants

Overall, this agreement should be good news for patients who have received negligent treatment. The document states that NHS defendants and claimants’ solicitors should:

  • Act in the spirit of collaboration, not opposition
  • Disclose relevant documents earlier and in full
  • Promote alternative dispute resolution methods
  • Facilitate an early resolution of the negligence claim

Improved communication channels

The agreement also expects parties to exchange evidence, documents and other communication by email where possible, instead of physical mail.

Legal and court documents should be served by email, with clear guidelines to ensure proper service. Parties are also encouraged to use remote video calls for discussions and mediation, to avoid unnecessary delays.

Why was the agreement necessary?

The 2020 protocol was created to manage clinical negligence claims during widespread disruption of the legal and healthcare systems caused by the COVID-19 pandemic.

Lockdowns and other pandemic measures caused long delays, including the postponement of medical treatment, diagnosis delays, court closures and delays in legal processes generally.

The 2020 protocol extended limitation periods to give claims more time to be processed, and promoted more cooperation between parties. More flexibility in procedural matters was also encouraged, especially by dealing with cases by email and video call.

As the pandemic-era delays were resolved, stakeholders like NHS Resolution and claimant solicitor organisations saw the need to formalise the improvements developed during COVID in a new agreement, and build a consistent approach across the NHS.

A transparent process and better outcomes for injured claimants

The 2024 agreement isn’t legally binding, but will help to standardise improvements to the clinical negligence claims process. This will lead to better and faster outcomes for claimants, and more cost-effective resolution of cases.

More transparency, and a less confrontational approach, should make the process of making a claim a less stressful experience. Getting a fuller picture of how the negligence happened, and an apology, will also give claimants a fuller sense of justice.

The agreement’s emphasis on apologies and learning from mistakes is part of a wider cultural shift towards more openness and transparency within the NHS advocated by NHS Resolution.

Read more:

NHS Resolution reports success with fewer negligence cases going to court

Chris Salmon, Director

Author:
Chris Salmon, Director