To Meet the National Standard, You Must Be Able To

Unit Title

IB13

/ Clinical Negligence and Legal Advice Casework

Summary

This Unit is designed for you if you provide specialist advice and representation relating to clinical negligence. This includes advising clients on more complex and specialised areas of law. You will know how to prepare and present cases on behalf of clients, but will also know how to undertake more complex legal actions such as challenging legal decisions.
This is a knowledge based unit that has been developed for the independent Legal Advice sector and revised as part of the incremental review project, March 2009. This Knowledge Unit supports the generic National Occupational Standards for Legal Advice. It is an optional Unit in the NVQs Level 4 in Legal Advice

To meet the National Standard, you must be able to:

a) / Define relevant legislation and case law in your country relating to clinical negligence and explain how to access and evaluate it in relation to individual circumstances
b) / Explain relevant pre-action protocols relating to clinical negligence cases
c) / Describe the key factors that need to be considered in the resolution of clinical disputes
d) / Explain the rules relating to limitations of actions
e) / Define the relevant European legislation and explain how it can impact on clinical negligence cases
f) / Describe the protocols and rules of the different courts in your country that may be involved in cases of clinical negligence
g) / Explain particular factors which relate to claims arising from death
h) / Describe the structure of the National Health Service (NHS) and the key roles and responsibilities of the various professionals within the NHS
i) / Explain the indemnity rules affecting different parts of the NHS and the role of medical defence bodies
j) / Describe the aspects of private health care as they may affect a clinical negligence case
k) / Describe the codes of practice that the different health and medical professionals must adhere to and how their breach may impact on clinical negligence cases
l) / Explain what to look for in a client’s medical records and why their review is important to the case
m) / Explain the range of pre-litigation procedures that are available to clients
n) / Describe how clients can fund their case
o) / Describe the different types of damages that may be available and the rules that apply to their application
p) / Explain the importance of client’s obtaining financial/investment advice where appropriate and describe how to refer the client for specialist advice
q) / Explain how a claim for clinical negligence can impact on a client’s entitlements to welfare benefits
r) / Describe the ethical issues and problems that may arise in clinical negligence litigation
s) / Explain legal privilege and duties of disclosure as they relate to clinical negligence cases
t) / Explain the importance of working professionally and sympathetically with clients who have suffered trauma and ways of doing this
u) / Describe how to source an appropriate expert medical witness and explain the factors relevant to their selection
v) / Explain the key factors to be considered in the analysis of a report from an expert witness and when it may be appropriate to obtain a second opinion
w) / Explain the possible impact of the Mental Capacity Act (or other relevant and
up-to-date legislation relating to capacity) and the role of the Court of Protection
x) / Explain what is meant by product liability in clinical negligence cases
y) / Explain what Group Actions are and what to do when these are in progress, to ensure the client’s best interests

Knowledge and Understanding

You must show that you know and understand:

1. / Relevant and up-to-date legislation and case law in your country relating to clinical negligence and how to access it
2. / Pre-action protocols
3. / Resolution of clinical disputes, including:

Mediation as a way of resolving disputes
Proportionality of costs
Balance of probability
Distinction between breach of duty and causation of problem
NHS complaints procedures and alternative dispute resolution (ADR)

4. / The rules relating to limitations of actions
5. / Relevant European Community legislation, including the European Convention on Human Rights
6. / The protocols and rules relating to relevant courts in your country as they relate to clinical negligence litigation and case management
7. / Claims arising from death
8. / The structure of the NHS, the roles and responsibilities of NHS professionals and how this can affect clinical negligence claims
9. / The indemnity rules relating to complaints to hospitals/trusts, primary health care authorities, the General Medical Council (GMC) and the Health Service Commissioner
10. / The different considerations when dealing with private health care
11. / The role of medical defence bodies
12. / The codes of practice that apply to different medical and health professionals
13. / Review of medical records, including:

How to collate medical records and how to assess whether they are complete
If any missing, how to obtain relevant records
How to check records against patients’ accounts
How to interpret medical records and reports and assess their implications to the case
How to assess their objectivity accurately
Assess the legal relevance of the medical issues of the case

14. / The relevant support agencies and their rules
15. / The range of pre-litigation procedures, including:

Mediation
Hospital/trust complaints procedures
Complaints to relevant health authorities
Complaints to the Ombudsman
Complaints to the GMC

16. / The rules and procedures relating to accessing funding for the case, including:

Private finance
Legal expenses insurance
Public funding

17. / Different types of awards of damages and the rules relating to them, including:

Assessing damages/compensation and calculating interest
Periodic payments

18. / The inter-relationship between clinical negligence work and welfare benefits
19. / The importance of clients obtaining independent financial/investment advice in the case of being awarded substantial damages payments and where to refer them for specialist advice
20. / The ethical issues and problems in clinical negligence litigation, including:

The disclosure of all medical records and reports to relevant people
The disclosure of medical expert’s opinions to clients

21. / The medical ethical codes and professional relationships between different branches of the medical and health professions
22. / How to work professionally and sympathetically with clients who have suffered trauma and why this is important
23. / How to select and use expert witnesses, including:

Identifying an appropriately qualified and experienced expert
Instructing the expert witness using court rules on expert witnesses
Establishing the timescales for the case
The factors to be considered when analysing reports from expert witnesses
When to obtain a second opinion

24 / The impact of the Mental Capacity Act (2005)/Adult Support and Protection Scotland Act 2007 (or other relevant legislation) and the role of the Court of Protection
25. / Product liability in clinical negligence cases
26. / What Group Actions are and how they operate, including:

When to refer clients to the ‘lead solicitor’
Time limitations for claims

Skills for Justice / Page 1
Knowledge unit for Legal Advice / Final Version noted July 2009