`...Thefearoflitigationamongsomanydoctorsisoftenbasedonignoranceof
thelegalsystem.Ihaveheard,forexample,ofdoctorswhoareunclearaboutthe
differencebetweencivilandcriminalproceedings,andafraidtheymightbesent
to prison if they were ``found guilty'' of medical negligence.'Healsomadeacallformorelegaleducationfordoctorstohelpdemystifythelegal
process.
TheClinicalNegligencePre-ActionProtocolcombinesLordWoolf'ssentiments
as expressed in his report. The Protocol, however, represents another centralist
shiftinhealthlitigationmanagement.Thepartiestoaclinicalnegligenceclaimare
subject to the Protocol and it represents another layer of control. Control and
regulation must by definition reduce the exercise of professional discretion and
creativity. The exercise of discretion and creativity are the hallmarks of a profes-
sional role; in this instance that of the lawyers who advise the patient and the
health body.
The ideas behind the Protocol are very laudable. Everybody can agree that
saving money and time by avoiding unnecessary litigation is a good idea. The
NHSLA state the aims as being [17, 18]:
`Savings in costs, both Plaintiff's costs and the Trust's own costs;
Disposal of unsubstantiated claims at an earlier stage;
Improved risk management and encouragement of good practice;
Improved claims handling standards pre-litigation;
Plaintiffs with meritorious claims will be compensated earlier.'Againabalancehadtobestruck,andhasbeenstruck,betweenprofessionallegal
practice autonomy and the perceived public interest.
Is the Protocol working?
ThereisnodetailedempiricalresearchyetonthesuccessoftheWoolfreformsin
theclinicalnegligencearea.TheLawSociety[19]producedthefirstsurveyonthe
impactofthechangeswithasmallsurveyof30solicitorsthroughoutEnglandand
Wales, who are co-ordinating feedback on the civil justice changes to the Law
Society.Thereportrevealsthattherespondentsfeltthatdespitethefactthatitwas
earlyoninthechangestheCivilProcedureRulesseemedtobeworkingquitewell.
Respondents were asked to comment on the personal injury and clinical
negligence pre-action protocols:
`The vast majority of respondents believe that the pre-action protocols are
workingeither verywellorquitewell.Again, however,itwas thoughtbysome
too early to tell, not least as some solicitors have stopped issuing at present.
Someinsurancecompaniesareapparentlydemonstratingareluctancetofollow
the Protocols.'Research also needs to be done on NHS Trust managers' perceptions of the
Protocolinordertoachieveabalancedview.TheLawSociety'ssmallrespondent
cohort makes conclusions difficult to draw; a much larger and professionally
diverse sample needs to be taken.
The Policy Dimension: the Legal Environment of the New NHS 67