Pa Daly (Kerry, Sinn Fein)
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556. To ask the Tánaiste and Minister for Justice and Equality if she has any plans for reform of pre-action protocols in medical negligence cases; and if she will make a statement on the matter. [26407/22]

Helen McEntee (Meath East, Fine Gael)
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Justice Plan 2022 commits to legislating for new pre-action protocols (clinical negligence) to encourage early resolution of allegations of negligence, promoting timely communications between parties, and reducing the number of clinical negligence actions which are brought, and to including these enabling provisions in a civil law miscellaneous provisions Bill.

Work, in conjunction with the officer of the Attorney General, in relation to pre-action protocols for clinical negligence cases, as recommended in the Report of an Expert Group, chaired by the High Court Judge, Mr Justice Charles Meenan, to consider an alternative mechanism to the court process for resolving clinical negligence claims.

The Working Group’s Report, which was published in December 2020, contains seventeen recommendations for change, six of which come under my Department’s remit.  These recommendations relate to:

- the implementation of pre-action protocols for clinical negligence actions;

- the imposition of penalties for failure to comply with the requirements of pre-action protocols;

- the commencement, following the introduction of pre-action protocols, of section 221 of the Legal Services Regulation Act 2015, which will amend the Statute of Limitations in clinical negligence cases;

- the introduction by the Courts Service of case management of clinical negligence claims;

- the introduction by the Courts Service of a dedicated High Court list for clinical management claims; and

- the amendment of section 26 of the Civil Liability and Courts Act 2004 to provide for sanctions where a defendant files a defence containing matters in respect of which there is no supportive expert report.  

However, in preparing the regulations, difficulties have arisen in relation to the statutory basis for making pre-action protocol regulations pursuant to Part 15 of the Legal Services Regulation Act 2015 dealing with clinical negligence actions.  As committed to in Justice Plan 2022, I intend to address these difficulties in legislation this year.

When made, the Protocols, as conferred under section 219 of the Legal Services Regulation Act 2015, will provide for disclosure of records, communications between the parties about allegations of possible clinical negligence, third party matters, mediation and the time-limits and forms of communications throughout the pre-action stage of engagement.  The legislation also provides for the powers of the court to direct compliance with the pre-action protocol by the parties and to order the payment of costs by a party who has not so complied.

Commencement of the relevant section of the Legal Services Regulation Act 2015, which will amend the Statute of Limitations, will follow shortly after the introduction of the pre-action protocol regulations. 

My Department will shortly be engaging with the Courts Service in relation to case management of clinical negligence actions and in relation to the possibility of a dedicated High Court list for such actions.  Consideration of the recommendation to amend section 26 of the Civil Liability and Courts Act 2004 is ongoing.

I will be updating the Government regarding implementation of the recommendations as they progress.