Medical Protection Society (MPS) has urged the Government to take the final steps to implement pre-action protocols to speed up clinical negligence claims, as it approaches a decade since legislation was passed paving the way for their introduction.

Speaking at MPS’s annual medical conference today (4 October), Dr Rob Hendry, the organisations Chief Member Officer and Medical Director, said the need for pre-action protocols “has never been greater”.

“Being involved in a clinical negligence claim can be brutal for both patients and doctors. In Ireland however, this is made much worse by a painfully slow process – longer than in any other country where MPS has members,” he said.

“While the human cost of the current process is clear, there is a financial price too. A protracted claims process means lawyers are involved extensively and over a longer period. Our data shows this is racking up legal costs that are among the highest of all the countries where we operate, which affects the cost of indemnity which doctors require to protect themselves against claims.

“Pre-action protocols – a set of guidelines, laid out through legislation, which explain the conduct and steps a court expects parties to take before claims proceedings can commence - would help in speeding the process up.

“Pre-action protocols are not ‘new’. The Legal Services Regulation Act 2015 already set out a legal basis for implementing them. The regulations now just need to be drafted to facilitate this – something successive governments including the current Government - have committed to, but sadly not yet delivered on.

“So here we are - almost a decade since the legislation which paved the way for pre-action protocols came into effect – and the need for their introduction has never been greater. We urge the Government to fulfil its commitment to creating a fairer, more efficient system and to fix a system that does not currently benefit anyone involved.” Earlier this year, MPS coordinated a letter calling on the Government to take urgent action on pre-action protocols – the letter was co-signed by 13 other organisations representing patients, doctors and dentists as well as legal firms in Ireland.

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Notes:

• MPS data shows that a claim in Ireland takes just over four years (1,478 days) on average to resolve, which is 65% longer than in Hong Kong (894 days), 64% longer than Singapore (901 days) and 62% longer than in the UK (913 days).

• The average legal cost for an Ireland claim managed by MPS is €38,673 - which is, for example, 193% more expensive than in the UK (€13,202) and 72% more expensive than in than in Malaysia (€22,515).

• Section 219 of the Legal Services Regulation Act 2015 amended the Civil Liability and Courts Act 2004 to introduce a statutory basis for pre-action protocols in clinical negligence actions, with the Minister for Justice responsible for specifying the terms of the protocol by regulation. The intention was that pre-action protocols could be applied to certain types of civil litigation, including clinical negligence claims, to encourage earlier disclosure of information, reduce costs, and promote settlement before going to court. The Act therefore provided a legal basis for drafting and implementing pre-action protocols. The final step for the Government would be to set out regulations specifying the terms of the protocol.
• The 2025 Draft Programme for Government committed to implementing the findings of the Interdepartmental Working Group on the Rising Cost of Health -Related Claims report, which recommended the implementation of pre-action protocols: gov - Interdepartmental Working Group on the Rising Cost of Health-Related Claims Report (www.gov.ie)
• Other support for pre-action protocols in Ireland: The Review Group chaired by Peter Kelly, recommended that the Minister for Justice give early attention to the introduction of the regulations prescribing the pre-action protocols in clinical negligence cases. The Government accepted in full the recommendations from Peter Kelly. Pre-action protocols had also been recommended earlier in 2012, by the Working Group on Medical Negligence and Periodic Payments, established in 2010 and chaired by Ms Justice Mary Irvine, former President of the High Court. In 2020, the Expert Group report to review the law of torts and the current systems for the management of clinical negligence claims, chaired by Mr Justice Charles Meenan, also called for pre-action protocols to be implemented. The 2022 and 2023 Justice Plans set out commitment to introducing pre-action protocol regulations through implementation of Part 15 of the Legal Services Regulation Act: gov.ie - Justice Plan 2023 (www.gov.ie)
• The 2024 MPS report: The human and financial cost of clinical negligence claims: The “case for pre-action protocols: www.medicalprotection.org/ireland/about/policy-and-public-affairs/tort-reform
• An MPS survey exploring the impact of clinical negligence claims on doctors in Ireland, had responses from 200 doctors who have experienced a claim. Key results:

- 91% of doctors were worried about their mental wellbeing during the claim

- 70% were worried about the impact of the claim on loved ones

- 88% were worried about the length of time the process was taking

- 44% said that their experience of a claim has resulted in them reconsidering their future as a doctor

- 96% would support the earlier resolution of claims by having legislation for pre-action protocols