A pre-action protocol for Scottish clinical negligence claims is coming: what can we expect?

Following our update on the clinical negligence pre-action protocol in Northern Ireland, Joanne Farrell examines the current state of play in Scotland.

In Scotland, the introduction of a pre-action protocol specific to clinical negligence claims falls somewhat behind the curve from the position in England, Wales and Northern Ireland. In fact there is currently no clinical negligence pre-action protocol in Scotland at all. However, changes are afoot.

The Scottish Civil Justice Council (SCJC) approved new pre-action protocols for both clinical negligence and disease claims back in 2022. These protocols are currently with the SCJC Costs and Funding Committee for the development of suitable fee structures, which have not yet been published. However in the SCJC’s Annual Programme for 2023-24, it is stated that the protocols are a priority to be progressed during the 2023-24 planning period, so it is currently a case of ‘watch this space’.

Background

To set the scene on pre-action protocols in Scotland more generally, the first compulsory pre-action protocol (2016 protocol) was introduced on 28 November 2016 for personal injury cases arising from all accidents that occurred on or after that date. This protocol applies to all cases with a value of up to £25,000 but specifically excludes clinical negligence and disease claims. Clinical negligence is defined in the rules as ‘a breach of duty by a healthcare professional in connection with that person’s diagnosis or the care and treatment of any person, by act or omission, while the healthcare professional was acting in his professional capacity’. A ‘healthcare professional’ includes ‘a registered medical practitioner, a registered nurse or any other member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002’.

The 2016 protocol, by its compulsory nature, provides the court with certain powers or sanctions which they can grant in a litigation that follows a breach of the protocol. These are:

• To sist (stay) the action to allow any party to comply with the protocol;
• To make an award of expenses (costs) against any party in breach or modify the expenses upon final settlement; or
• To make an award regarding the interest payable on any award of damages.

Clinical negligence cases currently fall under the voluntary pre-action protocol scheme, which has been in place in Scotland, in certain formats, since 2006. Since there is no statutory basis for the voluntary scheme, there are no sanctions for non-compliance. This naturally reduces the effectiveness of the protocol. Having said this, there has been a degree of expectation that parties will agree to comply with the 2016 protocol in clinical negligence cases even though those provisions are not mandatory for this type of claim. The awaited protocols are expected to resolve the uncertainty and provide clear pre-action guidelines to include sanctions for the proper and proactive handling of pre-litigation clinical negligence claims in Scotland.

Potential new requirements

The provisions contained in the 2016 protocol are similar to the earlier voluntary scale - the main difference being the introduction of the sanctions. The expectation is that the new protocol for clinical negligence claims will be in a similar vein. The below summarises the 2016 protocol requirements with some commentary on the likely areas where the awaited clinical negligence protocol may depart from the 2016 protocol provisions.

• Claim form
  The claimant is to issue a letter of claim/claim form as soon they have enough information to substantiate a claim. The letter should identify the claimant, provide a summary of the facts, and state the allegations of breach of duty, the injuries suffered and the financial loss sustained. We anticipate that the awaited clinical negligence protocol will also include a requirement for the letter of claim to comment on how the breach of duty caused the loss, i.e. address causation. This is a feature that is often not grappled with until some way down the litigation process in clinical negligence actions.
• Investigation
  The defender has 3 months to investigate and provide its response. It is likely that the clinical negligence protocol may contain more detailed requirements for the parties to disclose information in relation to the nature of their investigations, the number and types of experts instructed and to provide timescales for the exchange of expert evidence addressing breach of duty and causation. Given the need to obtain expert evidence addressing both breach of duty and causation, it is also anticipated that the time-frame for this step will be longer, perhaps in the region of 4–6 months. 
• Acknowledge letter of claim
  This needs to be done by the defender within 21 days. We expect this provision to be duplicated in the awaited protocol.
• Disclosure of documents
  Where liability is admitted, the claimant must instruct a medical report within 5 weeks, which following receipt must be disclosed to the defender within 5 weeks. We anticipate similar provisions to appear in the awaited protocol.
• Valuation
  The claimant must issue a valuation as soon as possible following receipt of all relevant information. Similar provision is expected in the awaited protocol.
• Settlement offer
  This should be made within 5 weeks of receipt of the valuation. If an offer is not made by the defender, then the pursuer can proceed with raising the court action. Again, we expect a similar provision in the awaited protocol.
• Response to offer
  Within 14 days, the claimant must either accept the offer or provide a reasoned response explaining why the offer is rejected. Given the more complex nature of a clinical negligence action and the likely need to discuss offers with counsel, we anticipate this timescale to be longer and perhaps in the region of 28 days. 
• Stocktaking period
  Proceedings should not be raised until at least 14 days after the defender receives their reasoned response to the offer. This period might also increase, perhaps to 28 days.

Bear in mind nothing is set in stone, and this is currently conjecture on how the new clinical negligence protocol may differ from the 2016 protocol for personal injuries cases. Keep your eye out for a further update from the team when the new Scottish clinical negligence protocol has been published. 

In the meantime, should you require any further information or wish to discuss further, please contact Joanne Farrell in our Glasgow office.