5.2.3 Centralist control
Thefreedomand autonomyofNHS bodiesto select their legaladvisorshasbeen
seriouslyrestricted.Thefirmsofsolicitorswhowerenotselectedtothepaneland
whopreviouslyhadalargeamountofhealthauthorityworkwillhavetoreassign
staff and no doubt will have suffered financially. The firms who are on the panel
will wish to stay there and know that their practices will be scrutinised by the
NHSLA.Lossofpanelmembershipforthemwillhavedirefinancialconsequences.
The balance of power in defending NHS bodies has changed. Defendant
solicitorfirmsareaccountabletotheNHSLAandtheNHSLAisinaverypowerful
positiontoimposeagendas.TheseagendascanbedirectedbytheNHSExecutive,
or may come from within the NHSLA management structure itself.
Aclear recent trend of centralist control of clinical negligence legal advice
servicesisemerging.TheGovernmentandtheNHSLAhaveintervenedinwhocan
act for the parties in a clinical negligence litigation dispute. Those seeking legal
advice have to approach approved firms of solicitors. In the case of defendant
solicitors,theymustbeacceptabletotheNHSLAaswellastheTrusttheyadvise.
There is no free market for the provision of legal services to NHS bodies and
claimants. Solicitor firms are subject to new pressures which vary according to
whether they act for defendants or claimants. On balance those who act for
claimants appear to have more control of their professional practices once they
qualifyforpanelmembershipastheyarenotmanagedbytheNHSLAanddonot
havethatelementofdirectaccountability.Thetrendofcentralisationandtosome
extent, standardisation, of the conduct of clinical negligence litigation is perhaps
best illustrated by the Clinical Negligence Pre-Action Protocol.
5.2.4 The Clinical Negligence Pre-Action Protocol
The Clinical Negligence Pre-Action Protocol arose from a review of civil litiga-
tion by Lord Woolf [16] and subsequently the work of the Clinical Disputes
Forum .CDF), a multi-disciplinary group formed in 1997 as a result of the
Woolf Civil Justice Inquiry. The Protocol [7] is now part of a Practice Direc-
tion which accompanies the Civil Procedure Rules. Parties to a clinical negli-
gence dispute will be penalised by sanctions, including cost penalties, if they
do not follow the protocol. The protocol covers two central areas ± commit-
ments and steps.
The commitments section gives guiding principles which health care providers,
patients and their advisers are invited to subscribe to when dealing with patient
dissatisfactionwithtreatment,andwithcomplaintsandpotentialclaims.Thesteps
section sets out in a prescriptive form a recommended action sequence to be
followediflitigationisaprospect[7].Issuescoveredincludepatientsreportingany
concerns and dissatisfactions to the health care provider as soon as is reasonably
possible. Health care providers should ensure that key staff, including claims and
litigation managers, are appropriately trained and have some knowledge of health
carelaw,complaintsproceduresandcivillitigationpracticesandprocedures.Health
service provider response times to key events such as record requests are stated.
The Policy Dimension: the Legal Environment of the New NHS 65