by Mary Hough , Stephen McGuinness March-07-2025 in Healthcare Law
In this third article in the ‘Embracing Change’ series, Mary Hough comments on the gathering momentum for the introduction of a Pre Action Protocol (PAP) and Stephen McGuinness explains what a PAP is and how its introduction would mark a significant step forward for both patients and healthcare providers.
Embracing Change - Momentum is gathering for tort reform in relation to clinical negligence claims and in particular the introduction of PAPs. Mary Hough, head of the Hayes healthcare team was invited to attend Leinster House this week to participate in a panel discussion at an event hosted by Medical Protection Society and Barry Ward TD which addressed the urgent need for PAPs, case management and dedicated judges for the hearing of clinical negligence claims. Compelling presentations were made by Professor Rhona Mahony and Medical Protection Society in relation to the human and financial cost of clinical negligence claims in the absence of essential tort reform. As Hayes has been at the forefront of advocating for this tort reform (Hayes solicitors host conference of leading experts to discuss proposals for the reform of clinical litigation in Ireland) we are delighted to see this gathering momentum for change.
Pre-Action Protocols
Pre-action protocols (PAPs) for clinical negligence claims are sets of guidelines designed to encourage early communication and the exchange of information between parties involved in a potential clinical negligence dispute before formal legal proceedings are initiated. They aim to promote a more efficient and cost-effective resolution of disputes by encouraging parties to engage in early discussions, disclose relevant information, and explore the possibility of settlement without the need for court intervention.
In practice, PAPs for clinical negligence claims typically require the plaintiff to send a letter of claim to the healthcare provider or healthcare institution alleged to be responsible for the negligence. This letter outlines the nature of the claim, the alleged breach of duty, the harm suffered by the plaintiff, and the desired outcome. Upon receiving the letter of claim, the healthcare provider has a specified period to acknowledge the claim, conduct an investigation, and provide a detailed response addressing the allegations made by the claimant. The parties are encouraged to engage in discussions, exchange relevant medical records and consider alternative dispute resolution mechanisms, such as mediation, to resolve the dispute.
Benefits of Pre-Action Protocols
PAPs promote transparency, early assessment of the strengths and weaknesses of the claim, and the exploration of settlement options to achieve a fair and timely resolution. If the parties are unable to reach a settlement during the pre-action stage, the PAPs help to ensure that the subsequent court proceedings are conducted in a more efficient and focused manner, with a clear understanding of the issues in dispute and the evidence that will be relied upon by both parties. Overall, PAPs for clinical negligence claims play a crucial role in facilitating the early resolution of disputes, reducing costs, and promoting a more collaborative approach to resolving clinical negligence claims. PAPs have been in place in England and Wales for almost 25 years and the benefits of their introduction are evident with the majority of clinical claims resolved pre action.
Blueprint for Success
The Legal Service Regulation Act 2015 provides power to the Minister for Justice to make Regulations which will set out the detail of the PAPs to be introduced in this jurisdiction. The Act requires that before making Regulations, the Minister shall consult with specified bodies, listed in the Act, and other bodies the Minister considers appropriate.
The experience and learnings from England and Wales provide a clear roadmap for the protocols in Ireland. The introduction of PAPs for clinical negligence claims was addressed in detail, when the Working Group on Medical Negligence and Periodic Payments chaired by Justice Mary Irvine delivered their “Module 2”1 report which appended a draft protocol for clinical negligence actions styled on the pre-action protocol in England and Wales with appropriate modifications.
Working better together
It is clear that a PAP ensures better cooperation between parties even if litigation commences. It ensures earlier engagement and the sharing of relevant information. Furthermore, it narrows down the issues and this early engagement and co-operation between the parties can carry through to the court proceedings, resulting in an increase in the use of alternative dispute resolution mechanisms, including mediation, at a much earlier stage.
Case Management
For the benefits of a PAP in clinical negligence claims to persist once legal proceedings are initiated, it is essential for case management to play a complementary role in overseeing the litigation process. While PAPs aim to encourage early communication, exchange of information, and potential settlement discussions between parties before formal court proceedings, the transition to formal litigation necessitates structured case management by the courts. This provides the necessary framework for continued organisation, oversight, and resolution of clinical negligence claims post the issuing of proceedings, ensuring that the momentum and objectives established during the pre-action phase are maintained. Moreover, the integration of case management in clinical negligence claims post issuing of proceedings can complement the objectives of PAPs by fostering continued communication, collaboration, and potential settlement opportunities between the parties.
Conclusion
The introduction of clinical negligence PAPs in Ireland will mark a significant step forward in ensuring a fair and efficient dispute resolution process for both patients and healthcare providers. By promoting early communication, transparency, and the potential for early resolution of disputes, these protocols have the potential to improve patient outcomes, reduce legal costs and foster a culture of learning and improvement within the healthcare system. With careful planning and collaboration, the introduction of PAPs with associated case management has the potential to bring about significant positive change in the realm of clinical litigation in Ireland.
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About the Authors
Mary Hough
Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.
Stephen McGuinness
Stephen is a partner in the Healthcare team at Hayes solicitors. Stephen specialises in the defence of medical and dental negligence claims taken against hospitals as well as individual medical and dental practitioners.