Clinical Negligence Claims Agreement 2024 Guidance for Trusts

A new Clinical Negligence Claims Agreement 2024 has been implemented and is effective from 27 August 2024, replacing the COVID-19 Clinical Negligence Protocol 2020. The aim of the agreement is to further improve claims management practices and it has been agreed between NHS Resolution and key stakeholders, including Action against Medical Accidents (AvMA) and the Society of Clinical Injury Lawyers (SCIL).

Essentially, the Agreement intends to build on existing collaboration established between defendants and claimants, encouraging positive behaviours and consistency of approach with a view to facilitating the progression of claims in a positive manner and helping to reduce the risk of costs being spent unnecessarily on formal proceedings. Whilst the Agreement is not legally binding, it is proposed that the parties should be allowed to refer the court to it for non-compliance in the event there are arguments that costs have been incurred unnecessarily. 

The provisions within the Agreement apply to civil claims under domestic law (including claims under the Human Rights Act 1998) and those under the European Convention on Human Rights.

It is recommended that all those dealing with clinical negligence claims relating to NHS treatment read and digest the full Agreement, which can be accessed here. However, we suggest that the key points can be summarised as follows:

Limitation and extensions of time

• If a firm is a party to the Agreement, in any case where limitation was suspended under the COVID-19 Clinical Negligence Protocol 2020, limitation will be suspended for 12 months until 27 August 2025, unless specific extensions have been agreed with NHS Resolution members, case handlers or panel. Further limitation extensions can be agreed on a case-by-case basis at the conclusion of this period and the expectation is that they will be agreed if the claimant demonstrates what progress is being made.
• A firm who is not party to the Agreement, but who takes over a case where a limitation suspension under the COVID-19 Clinical Negligence Protocol 2020 has previously been agreed, will not benefit from the Agreement. On these cases, firms will have six months, i.e. by 27 February 2025, to negotiate a further suspension of limitation on a case-by-case basis.
• In all other cases, limitation extensions must be agreed on a case-by-case basis. The expectation is that a reasonable limitation extension of up to six months will be agreed and potentially further extensions can also be agreed subject to the claimant explaining why the extension is required and what progress is being made.
• Following an inquest, parties have eight weeks from conclusion of the inquest to notify of their intention to bring a civil claim. Where this is done, limitation is extended for nine months from the date the coroner delivers their conclusion. Written notification should be sent to limitationnotification@nhs.net.
• Reasoned and reasonable requests to extend deadlines to comply with court directions or extensions of time for service of a Defence should not be opposed except in exceptional circumstances. Where possible, extensions should be agreed by consent.

Disclosure

• In the spirit of collaboration, all parties will provide full disclosure prior to and following the issue of court proceedings, to facilitate narrowing of issues.
• Defendants should disclose all duty of candour letters, DATIX, SUI/PSIRF or similar investigations and complaints documentation.
• Claimants should disclose documentation in support of their claim for special damages as soon as possible.

Settlement and ADR

• Once the Letter of Response has been served, if liability and quantum are not resolved, parties should review their positions and consider if a “stock take” discussion would be beneficial in resolving the claim. This is encouraged via telephone, MS Teams and/or email.
• Prior to proceedings being issued, potentially as part of the ‘stock take’ discussion, the parties should explore unilateral or mutual exchange of expert liability evidence on a without prejudice basis in an effort to narrow the issues.

Saying sorry and learning lessons

• Where liability is admitted, a meaningful letter of apology should be provided to the claimant as soon as possible. If delays are likely then a time estimate should be provided to the claimant.
• Where admissions have been made, the letter of apology should identify any lessons that have been learnt and set out what measures have been put in place as a consequence.

The Agreement will be reviewed every 26 weeks and notice given to all clinical negligence practitioners of any changes. 

Conclusion

This Agreement reflects NHS Resolution’s ongoing commitment to the fair and efficient resolution of clinical negligence claims. It begins to bring to an end the open ended limitation moratoria agreed under the original Covid Protocol, while allowing scope to continue collaboration with claimant firms to agree reasonable further limitation extensions where required. In particular, Trusts should note the obligations under the Agreement for full disclosure, as that will often fall to them to deal with prior to NHS Resolution or panel involvement, and for a meaningful letter of apology to be provided where liability is admitted setting out lessons learnt and the steps taken to improve patient safety as a result of the claim.