Provisions allowing for pre-action protocols in clinical negligence actions are finally to be introduced, five years after they were advised by the working group on medical negligence which had been established by the President of the High Court.  They are being provided for within the Legal Services Regulation Bill, 2011.

The plan to introduce the pre-action protocols was welcomed in the Seanad on 26 November 2015. The Bill is still going through the legislative process although enactment is expected before Christmas.

The key changes in the Bill impacting on clinical negligence claims are summarised below.

(1) Time Limits Extended

Importantly, Section 3 of the Statute of Limitations (Amendment) Act, 1991 is to be amended to extend the limitation period from two to three years in clinical negligence actions.  It had been reduced from three years to two years under the Civil Liability and Courts Act, 2004.  This change will not affect cases where the cause of action has accrued or the date of knowledge is before the commencement of the amendment. 

(2) Pre-Action Protocols

The Bill introduces the pre-action protocols. 

The protocols themselves are unfortunately not yet published but will be set out in Regulations after consultation with a number of bodies (Section 32B(4)). The Minister for Justice confirmed in the Seanad that such consultation is already under way and it is hoped that the necessary Regulations will be made soon after the Bill is enacted and commenced. 

The pre-action protocols will include provisions on:

• The disclosure of medical (and other) records

• The giving of notifications of inquiries into, and allegations of, possible clinical negligence, the acknowledgment of these and the giving of responses to them
• When records are to be disclosed, notifications are to be given and acknowledgments or responses are to be provided
• The form of requests for disclosure or notifications of inquiries or allegations, acknowledgments and responses to such notifications
• The disclosure of material relevant to allegations and responses
• Agreements to submit issues for resolution otherwise than by a court

However, this is a non-exhaustive list and other matters may be included.

The Bill also outlines the powers of the court to deal with non-compliance with pre-action protocols, including adjourning proceedings, costs orders and the deprivation of interest on damages.

(3) Apology is not an admission of liability
 
Apologies in clinical negligence actions will no longer constitute an admission of fault or liability, nor will they have any effect on insurance coverage.  This change will be limited to causes of action accruing after the commencement of the section (Section 32D).  There is no reference to indemnity cover outside of insurance.

(4) Letters of Offer

Letters of offer were introduced under Civil Liability and Courts Act, 2004, Section 17.  It is proposed to insert additional wording into this section to introduce deterrents should either party not accept early reasonable offers of settlement.  These deterrents are largely centred around costs and interest charges.  

Contributed by: Margaret Muldowney, Martin Scanlon