There’s no denying the pandemic caused a lot of disruption to health and care services. In fact, it’s – at least in part – why the NHS is currently in a ‘critical condition’, with severe staff shortages, seismic waiting lists and a significant lack of funding.

But it also brought about one big, positive change.

That is, the introduction of the COVID-19 Clinical Negligence Protocol 2020.

Agreed between NHS Resolution and various key stakeholders, this protocol was created to manage clinical negligence claims during the pandemic – allowing them to be processed fairly and efficiently, despite the widespread upheaval of the healthcare system.

Four years on, this protocol has now been replaced with a new Clinical Negligence Claims Agreement (August 2024). An agreement designed to formalise the changes made by the protocol, build on its success and make further improvements.

Here at St Helens Law, clinical negligence is one of our specialist areas.

We’re incredibly pleased to hear of this new agreement and believe that, ultimately, it will lead to much faster and better outcomes for our clients. If you’re thinking of starting a clinical negligence claim, here we explore how it might help throughout the claims process.

How will the new agreement make a difference?

There are five key features to be aware of:

1. Extended limitation periods

Clinical negligence claims are time limited.

That means, typically, you’ll have three years to start proceedings – either from the date of the incident/injury or the date on which you became aware there was a problem caused by the alleged negligence.

However, as part of the new agreement, it will be possible to extend this three-year ‘limitation period’ in certain cases (e.g. following an Inquest) – therefore providing much more flexibility for claimants and their representatives, particularly in the aftermath of the pandemic.

2. Transparency

The new agreement emphasises the importance of openness and transparency between the claimants’ representative and the defendant (i.e. the NHS), encouraging both sides to:

• Disclose relevant documentation early, ideally before court proceedings begin.

All defendants (including Hospital NHS Trusts) are specifically required to provide documents relating to any investigations, complaints and duty of candour letters.

• Improve communication protocols

Wherever possible, evidence and legal documents should be exchanged via email, instead of physical mail. Plus, remote video calls should be used for any discussions.

• Settle the claim without delay

This includes a requirement for a representative of the defendant, who has financial authority to settle the claim, to be available on the day of any settlement meeting.

Ultimately, these small changes are hoped to eliminate any issues quickly, thereby speeding up NHS negligence claims and reducing investigation costs throughout the process.

3. Collaboration not confrontation

According to the new agreement, NHS defendants and claimants’ solicitors should always act in the ‘spirit of collaboration’ – aiming to avoid unnecessary litigation where possible.

As such, a ‘stock take’ discussion is proposed.

Before starting proceedings, both sides should consider what steps could be taken to reduce the issues and reach a settlement outside of the courtroom. This could include the early exchange of expert evidence, for example, or alternative dispute resolution techniques such as mediation. Again, the goal is to speed up the process and promote a faster resolution.

4. Interim payments

Anyone who has suffered due to clinical negligence shouldn’t be left out of pocket.

That’s why most clinical negligence solicitors – including our team here at St Helens Law – will oversee the claim on a ‘no win no fee’ basis. And ‘interim payments’ are so important, helping to cover everything from bills to immediate medical care and rehab expenses.

In line with this, the new agreement encourages defendants to take a fair and reasonable approach to these interim payments – particularly if liability has been admitted.

It also stipulates that defendants should pay adequate subsistence costs, as well as travel expenses if they require the claimant to attend a medical assessment with their experts.

5. A meaningful apology

If the defendant has admitted liability, the agreement suggests they should send a detailed and meaningful letter of apology as soon as possible – which acknowledges what happened, including the impact it had on the claimant, and takes responsibility for the negligence.

The letter should also explain the patient safety lessons learned as a result of the incident, outlining any changes that have (or will be) made to procedures, training and policies – to hopefully improve patient safety and prevent similar incidents from happening in the future.

It’s hoped this will help to rebuild trust between the claimant and the NHS, becoming a valuable part of their healing process and – ultimately – helping to resolve the claim much faster.

Start your NHS negligence claim today

Whilst this new agreement may not be legally binding, it will help to standardise improvements to the clinical negligence claims process – and as leading experts in this complex area of the law, we’re confident it will lead to faster, much more positive outcomes for claimants.

Encouraging a transparent and less confrontational approach should make the claims process much more straightforward – allowing any issues to be quickly eliminated and ensuring a satisfactory resolution (and settlement figure) is reached in a reasonable timeframe.

Plus, by providing the claimant with a fuller picture of how the clinical negligence occurred in the first place – and, crucially, an apology – it should also lead to a fuller sense of justice.

Claiming against the NHS may feel like a daunting prospect. But with the introduction of this new agreement – and the expertise of a specialist NHS negligence solicitor on your side – you can secure the financial justice you so rightly deserve, with minimal fuss or effort.

Here at St Helens Law, not only can we advise on your eligibility to claim, we can put together a successful NHS negligence claim that accurately reflects your circumstances – ensuring you receive the best possible settlement, in the quickest and easiest way.

What’s more, we can also help with any day-to-day support – including the arrangement of interim payments – or rehabilitation that you require to get your life back on track.

The first step is to get in touch. To arrange a free consultation with our specialist NHS negligence solicitors, you can either fill out our online form or send an email to info@sthelenslaw.co.uk. Alternatively, if you have any questions – about the Clinical Negligence Claims Agreement 2024 or anything to do with NHS negligence – feel free to call us on 01744 742360.