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1、Pre-Action Protocol for the Resolution of Clinical Disputes英国医患纠纷诉讼前调解议定书CONTENTSINTRODUCTION 概述Enforcement of the Protocol and sanctions 议定书及批准的执行Litigants in Person 诉请当事人1 THE AIMS OF THE PROTOCOL本议定书的宗旨THE PROTOCOL 议定书Rehabilitation 弥补措施Letter of Notification 通知函Letter of Claim 诉状Letter of Respon
2、se 辩论状2 EXPERTS专家意见ALTERNATIVE DISPUTE RESOLUTION 可选性纠纷处理方式3 STOCKTAKE备选解决方案Annexes 附录ILLUSTRATIVE FLOWCHART AFORM FOR REQUESTING MEDICAL RECORDS BTEMPLATES FOR LETTERS OF NOTIFICATION, CLAIM AND RESPONSE C1 INTRODUCTION 和灯术This Protocol is intended to apply to all claims against hospitals, GPs, den
3、tists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence. It is not intended to apply to claims covered by一(a) the Pre-Action Protocol for Disease and Illness Claims;the Pre-Action Protocol for Personal Injury Claims;
4、5.4 If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR, but a party s silence in response to an invitation to participate in AD
5、R might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.6 STOCKTAKE备选解决方案Where a dispute has not been resolved after the parties have followed the procedure set out in this Protocol, the parties should review their positions befor
6、e the claimant issues court proceedings,6.1.1 If proceedings cannot be avoided, the parties should continue to co-operate and should seek to prepare a chronology of events which identifies the facts or issues that are agreed and those that remain in dispute. The parties should also seek to agree the
7、 necessary procedural directions for efficient case management during the proceedings.(c) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents;the Pre-Action Protocol for Low Value Personal Injury (Employers7 Liability and Public Liability) Claims; or(d) Practice Di
8、rection 3D - Mesothelioma ClaimsThis Protocol is intended to be sufficiently broad-based and flexible to apply to all sectors of healthcare, both public and private. It also recognises that a claimant and a defendant, as patient and healthcare provider, may have an ongoing relationship.5.2 It is imp
9、ortant that each party to a clinical dispute has sufficient information and understanding of the other s perspective and case to be able to investigate a claim efficiently and, where appropriate, to resolve it. This Protocol encourages a cards-on- the-table approach when something has gone wrong wit
10、h a claimant, s treatment or the claimant is dissatisfied with that treatment and/or the outcome.5.3 This Protocol is now regarded by the courts as setting the standard of normal reasonable pre-action conduct for the resolution of clinical disputes,This Protocol sets out the conduct that prospective
11、 parties would normally be expected to follow prior to the commencement of any proceedings. It establishes a reasonable process and timetable for the exchange of information relevant to a dispute, sets out the standards for the content and quality of letters of claim and sets standards for the condu
12、ct of pre-action negotiations.1.1.1 The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. Where one or more parties consider the detail of the Protocol is not appropriate to the case, and proceedings are
13、 subsequently issued, the court will expect an explanation as to why the Protocol has not been followed, or has been varied.1.1.2 The Protocol provides for a defendant to be given four months to investigate and respond to a Letter of Claim before proceedings are served. If this is not possible, the
14、claimant s solicitor should give as much notice of the intention to issue proceedings as is practicable. This Protocol does not alter the statutory time limits for starting court proceedings. If a claim is issued after the relevant statutory limitation period has expired, the defendant will be entit
15、led to use that as a defence to the claim. If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Protocol, the parties should apply to the court for a stay of the proceedings while they so comply.1.1.3 The parties should also consi
16、der whether there is likely to be a dispute as to limitation should a claim be pursued.Enforcement of the Protocol and sanctions 议定书及批准的执行Where either party fails to comply with this Protocol, the court may impose sanctions. When deciding whether to do so, the court will look at whether the parties
17、have complied in substance with the Protocol s relevant principles andrequirements. It will also consider the effect any non-compliance has had on any other party. It is not likely to be concerned with minor or technical shortcomings (see paragraph 4,3 to 4,5 of the Practice Direction on Pre-Action
18、Conduct and Protocols).Litigants in Person 诉请当事人If a party to a claim does not seek professional advice from a solicitor they should still, in so far as is reasonably possible, comply with the terms of this Protocol. In this Protocol solicitor is intended to encompass reference to any suitably legal
19、ly qualified person.If a party to a claim becomes aware that another party is a litigant in person, they should send a copy of this Protocol to the litigant in person at the earliest opportunity.2 THE AIMS OF THE PROTOCOL本议定书的宗旨The general aims of the Protocol are -(a) to maintain and/or restore the
20、 patient/healthcare provider relationship in an open and transparent way;to reduce delay and ensure that costs are proportionate; and(b) to resolve as many disputes as possible without litigation.2.1 The specific objectives are-to encourage openness, transparency and early communication of the perce
21、ived problem between patients and healthcare providers;(a) to provide an opportunity for healthcare providers to identify whether notification of a notifiable safety incident has been, or should be, sent to the claimant in accordance with the duty of candour imposed by section 20 of the Health and S
22、ocial Care Act 2008 (Regulated Activities) Regulations 2014;to ensure that sufficient medical and other information is disclosed promptly by both parties to enable each to understand the other7 s perspective and case, and to encourage early resolution or a narrowing of the issues in dispute;(b) to p
23、rovide an early opportunity for healthcare providers to identify cases where an investigation is required and to carry out that investigation promptly;to encourage healthcare providers to involve the National Health Service Litigation Authority (NHSLA) or their defence organisations or insurers at a
24、n early stage;(c) to enable the parties to avoid litigation by agreeing a resolution of the dispute;to enable the parties to explore the use of mediation or to narrow the issues in dispute before proceedings are commenced;(d) to enable parties to identify any issues that may require a separate or pr
25、eliminary hearing, such as a dispute as to limitation;to support the efficient management of proceedings where litigation cannot be avoided;0) to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims;to promote the provision of medical or rehabilita
26、tion treatment to address the needs of the claimant at the earliest opportunity; and(k) to encourage the defendant to make an early apology to the claimant if appropriate.2.3 This Protocol does notprovide any detailed guidance to healthcare providers on clinical risk management or the adoption of ri
27、sk management systems and procedures;(a) provide any detailed guidance on which adverse outcomes should trigger an investigation; orrecommend changes to the codes of conduct of professionals in healthcare.3 THE PROTOCOL 议定书An illustrative flowchart is attached at Annex A which shows each of the stag
28、es that the parties are expected to take before the commencement of proceedings,Obtaining health recordsAny request for records by the claimant should-(a) provide sufficient information to alert the defendant where an adverse outcome has been serious or has had serious consequences or may constitute
29、 a notifiable safety incident;be as specific as possible about the records which are required for an initial investigation of the claim (including, for example, a continuous copy of the CTG trace in birth injury cases); and(b) include a request for any relevant guidelines, analyses, protocols or pol
30、icies and any documents created in relation to an adverse incident, notifiable safety incident or complaint.3.1 Requests for copies of the claimant s clinical records should be made using the Law Society and Department of Health approved standard forms (enclosed at Annex B), adapted as necessary.3.2
31、 The copy records should be provided within 40 days of the request and for a cost not exceeding the charges permissible under the Access to Health Records Act 1990 and/or the Data Protection Act 1998, Payment may be required in advance by the healthcare provider.3.2.1 The claimant may also make a re
32、quest under the Freedom of Information Act 2000.3.3 At the earliest opportunity, legible copies of the claimant s medical and other records should be placed in an indexed and paginated bundle by the claimant. This bundle should be kept up to date.3.4 In the rare circumstances that the defendant is i
33、n difficulty in complying with the request within 40 days, the problem should be explained quickly and details given of what is being done to resolve it.3.5 If the defendant fails to provide the health records or an explanation for any delay within 40 days, the claimant or their adviser can then app
34、ly to the court under rule 31.16 of the Civil Procedure Rules 1998 ( CPR ) for an order for pre-action disclosure. The court has the power to impose costs sanctions for unreasonable delay in providing records.3.6 If either the claimant or the defendant considers additional health records are require
35、d from a third party, in the first instance these should be requested by or through the claimant. Third party healthcare providers are expected to co-operate. Rule 31.17 of the CPR sets out the procedure for applying to the court for pre-action disclosure by third parties.Rehabilitation 弥补措施The clai
36、mant and the defendant shall both consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures. They should also discuss how these needs might be addressed. An immediate needs assessment report prepared for the purposes of re
37、habilitation should not be used in the litigation except by consent.Letter of Notification 通知函Annex Cl to this Protocol provides a template for the recommended contents of a Letter of Notification; the level of detail will need to be varied to suit the particular circumstances.3.7 Following receipt
38、and analysis of the records and, if appropriate, receipt of an initial supportive expert opinion, the claimant may wish to send a Letter of Notification to the defendant as soon as practicable.3.7.1 The Letter of Notification should advise the defendant that this is a claim where a Letter of Claim i
39、s likely to be sent because a case as to breach of duty and/or causation has been identified. A copy of the Letter of Notification should also be sent to the NHSLA or, where known, other relevant medical defence organisation or indemnity provider.3.8 On receipt of a Letter of Notification a defendan
40、t should(a) acknowledge the letter within 14 days of receipt;identify who will be dealing with the matter and to whom any Letter of Claim should be sent;#(b) consider whether to commence investigations and/or to obtain factual and expert evidence;consider whether any information could be passed to t
41、he claimant which might narrow the issues in dispute or lead to an early resolution of the claim; and(c) forward a copy of the Letter of Notification to the NHSLA or other relevant medical defence organization /indemnity provider.3.8.1 The court may question any requests by the defendant for extensi
42、on of time limits if a Letter of Notification was sent but did not prompt an initial investigation.Letter of Claim 诉状Annex C2 to this Protocol provides a template for the recommended contents of a Letter of Claim: the level of detail will need to be varied to suit the particular circumstances.3.9 If
43、, following the receipt and analysis of the records, and the receipt of any further advice (including from experts if necessary - see Section 4), the claimant decides that there are grounds for a claim, a letter of claim should be sent to the defendant as soon as practicable. Any letter of claim sen
44、t to an NHS Trust should be copied to the National Health Service Litigation Authority.3.16 This letter should containa clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence;(a) a description of the claimant s injuries,
45、and present condition and prognosis;an outline of the financial loss incurred by the claimant, with an indication of the heads of damage to be claimed and the scale of the loss, unless this is impracticable;(b) confirmation of the method of funding and whether any funding arrangement was entered int
46、o before or after April 2013; andthe discipline of any expert from whom evidence has already been obtained,3.17 The Letter of Claim should refer to any relevant documents, including health records, and if possible enclose copies of any of those which will not already be in the potential defendant s
47、possession, e.g. any relevant general practitioner records if the claimant s claim is against a hospital.3.18 Sufficient information must be given to enable the defendant to focus investigations and to put an initial valuation on the claim.3.19 Letters of Claim are not intended to have the same form
48、al status as Particulars of Claim, nor should any sanctions necessarily apply if the Letter of Claim and any subsequent Particulars of Claim in the proceedings differ.3.20 Proceedings should not be issued until after four months from the letter of claim.In certain instances it may not be possible fo
49、r the claimant to serve a Letter of Claim more than four months before the expiry of the limitation period. If, for any reason, proceedings are started before the parties have complied, they should seek to agree to apply to the court for an order to stay the proceedings whilst the parties take steps to comply.3.21 The claimant may want to make an offer to settle the claim at this early stage by putting forward an offer in respect of liability and/or