This article considers the interface between the standard setting activity of a regulatory body and the courts in the NHS. It is suggested that despite its many disadvantages the clinical negligence action remains an important safety valve when internal regulatory systems fail or are insufficiently transparent to gain full legitimacy. More specifically, it explores the ways in which attitudes about the usefulness of the data contained in claims against the NHS have changed in the aftermath of a number of high profile inquiries which have focused on issues of poor performance. The article concludes that while much greater use is now been made of the data contained in claims when setting standards, strategies for prompting judicial precedent as an alternative way of mobilising standard setting behaviour remain under developed.
Mulcahy, Linda, The Market for Precedent: Shifting Visions of the Role of Clinical Negligence Claims and Trials (January 15, 2014). (2014) 22 Medical Law Review 274.