Most people want to avoid legal action, so we’re exploring alternatives that are fair to the injured party and less stressful and expensive for everyone involved.
Why someone might pursue legal action
When someone has been affected by avoidable medical harm, they often feel forced to pursue legal action because:
they feel there has been a lack of openness and honesty from their healthcare provider,
they want to hold the people responsible for causing their harm to account, and/or
making a claim is the only way they can get the compensation they need and deserve.
However, in our experience, most people affected by avoidable medical harm do not want to take legal action if they can avoid it.
Supporting schemes promoting alternative dispute resolution
For this reason, Avma is keen to support and promote suitable alternatives to litigation which are fair to the injured party and less stressful and expensive for everyone involved in the situation. We have contributed to several schemes proposed in different areas of the UK:
In England, we helped shape significant safeguards included in the NHS Redress Act 2006, although this has not been enacted in practice and the government’s approach has since changed.
In Wales, we contributed to the planning of the Putting Things Right scheme, which operated from 2020 to 2026 before it was replaced by the Listening to People process.
In Scotland, we also contributed to proposals for a ‘no-fault’ compensation scheme, although this has yet to be introduced.
Methods of alternative dispute resolution
Mediation
Mediation is a process by which the parties disputing negotiate a settlement with the help of a neutral third party, the mediator. The mediator is often a practising lawyer with knowledge of clinical negligence, but must be impartial and acting independently. The parties are in control of the settlement and must agree to its terms together.
Early neutral evaluation (ENE)
ENE involves appointing a neutral third party to evaluate the facts, evidence, and law relating to a dispute between parties. The purpose of ENE is to provide an opinion on the likely outcome of a case if legal action were pursued, which can lead to out-of-court settlements in many cases.
Arbitration
Arbitration is a legal process governed under the Arbitration Act 1996. It involves appointing a specialist arbitrator who settles the dispute on behalf of the parties, rather than helping them come to an agreement like in mediation. It is not often used in clinical negligence cases, although some healthcare providers do explicitly state that they will use arbitration.
A broad overview of the alternatives available in seeking redress for a medical accident in England. The procedures in Scotland, Northern Ireland, and Wales may be different.
This guide explains what to do if you have been injured because of negligent medical treatment. It looks at what you need to prove to bring a successful legal action in clinical negligence.
