Replacing the Covid-19 Protocol

Last year, the COVID-19 Clinical Negligence Protocol was superseded by the Clinical Negligence Claims Agreement. Six months on from its first publication, Society of Clinical Injury Lawyers (SCIL) Chair and Head of Medical Injury at Ashtons Legal LLP, Sharon Allison takes a look at how the new agreement is settling in.

The Society of Clinical Injury Lawyers (SCIL) was a co-signatory - alongside NHS Resolution (NHSR) and Action Against Medical Accidents (AvMA) - of the original COVID-19 Clinical Negligence Protocol, which was drafted amid the turmoil of the pandemic.
It was designed to encourage 'positive behaviours’ among lawyers and organisations representing both claimants and defendants, as well as to promote a consistent approach for all parties to follow.

The unique circumstances of the pandemic inevitably focussed minds and created a sense of urgency and pragmatism that resulted in a protocol that was highly effective in reducing the need to issue proceedings. While its purpose was narrow in that regard, it also had a phenomenal financial impact, saving the taxpayer £32.6 million.

It’s sometimes said that “a crisis is a terrible thing to waste” and I think it’s fair to say that SCIL, NHSR, AvMA and everyone else involved made the best of an incredibly difficult situation. The successor agreement that we created both capitalised on and extended that spirit of collaboration.

It’s obviously in the interests of both parties to avoid lengthy and costly litigation, but especially for the injured person seeking to get on with their life. If the Covid-19 protocol was narrow in its focus, specifically targeting the issuing of proceedings, the new agreement has a much wider and broader application.

The new agreement also brings some much-needed certainty for all parties. While the Covid-19 protocol served its purpose well, it wasn’t designed to last forever. Having an agreed pathway of best practice between the parties provides a solid framework and I think most solicitors on both sides see that as beneficial.

While I cannot speak for NHSR, my perception is that they, like SCIL and AvMA, are pleased that we have managed to sustain the progress that we made during the pandemic and find common ground wherever possible.

So far, the new agreement seems to be doing its job. We’re about to have the first review since it was introduced and I don’t foresee the need to make any fundamental changes, so I’m optimistic that we have replaced the Covid-19 protocol with an agreement that will be both enduring and beneficial to all.

SCIL’s position has always been that claimant firms, rather than being the problem, are very much part of the solution. We obviously represent the interests of injured people, first and foremost, but the more collaborative approach that we’ve embraced since the outbreak of the pandemic has benefits for everyone.

All parties within clinical negligence want the same things: Shorter timescales for settling claims; less need for litigation; swift apologies to those who have been injured; improved learning; and, ultimately, fewer claims.

I believe the new Clinical Negligence Claims Agreement is making progress towards all of these shared goals, but I think the greatest benefit will be the continued desire to collaborate and to go further. I am genuinely excited at such a prospect.