Policy No: RM23
Version: 5.0
Name of policy: Claims Management Policy
Effective from: 24/10/2012
Date ratified 20/07/2012
Ratified Patient Quality Risk and Safety Committee
Review date 01/07/2014
Sponsor Director of Estates & Facilities
Expiry date 19/07/2015
Withdrawn date
Version Control Version Release Author / reviewer Ratified by / authorised by Date Changes
(Please identify page no.)
1.0 Feb 2003 Board of Directors 26/02/2003 2.0 3.0 Nov 2006 Legal Services Manager Board of Directors Nov 2006 4.0 Jan 2009 Legal Services Manager PQRS Jan 2009 4.1 Feb 2010 Legal Services Manager Director of Estates and Risk Management 05/02/2010 5.0 24/10/2012 Legal Services Manager
PQRS 20/07/2012 Change format into Trust policy format
Contents
Page
1. Introduction ... 5
2. Policy scope ... 5
3. Aim of policy ... 5
4. Duties – roles and responsibilities ... 5
5. Definitions ... 7
6. The management of claims ... 7
6.1 The role of the NHS Litigation Authority ... 7
6.1.1 Status and purpose ... 7
6.2 Day to day management of claims ... 8
6.3 Reporting guidelines ... 8
6.3.1 CNST (Clinical Negligence Scheme for Trusts) ... 8
6.3.2 LTPS (Liabilities to Third Parties) ... 9
6.4 Role of the Legal Services Department ... 9
6.5 Liaising with the NHSLA in the management of claims ... 11
6.6 The use of legal advisers ... 12
6.7 Information on claims ... 12
6.7.1 Delegated financial responsibility ... 12
6.8 Risk management issues ... 13
6.8.1 Grading of claims ... 13
6.8.2 Risk level and level of investigation and review ... 13
6.8.3 Root Cause Analysis ... 14
6.8.4 Risk Management Reports ... 14
6.9 Claims management procedure ... 14
6.9.1 Pre-action Protocols ... 14
6.9.2 Pre-action Protocol for clinical negligence claims ... 15
6.9.3 Pre-Action Protocol for Personal Injury Claims ... 16
6.9.4 Pre-action Protocol for Property Claims ... 17
6.10 Investigation of claims ... 17
6.10.1 Investigation of claims ... 17
6.10.2 Principal aims of all investigations ... 18
6.10.3 Investigation of a Clinical Negligence Claim ... 18
6.10.4 Investigation of a Personal Injury Claim. ... 19
6.10.5 Investigation of a claim relating to damage or loss of property . 19 6.11 Signing of legal defence documents on behalf of the Trust ... 20
6.11.1 Clinical Negligence claims ... 20
6.11.2 Risk Pooling Scheme claims ... 21
6.11.3 Property Expenses Scheme ... 21
6.12 Remedial action ... 21
6.13 Instructing the NHSLA ... 21
6.13.1 Resources ... 22
6.13.2 NHSLA aims, objectives and functions ... 22
8. Equality and diversity ... 25
9. Monitoring compliance with the policy ... 25
10. Consultation and review ... 25
11. Implementation of the policy (including raising awareness) ... 25
12. References ... 25
13. Associated documentation ... 26
CLINICAL NEGLIGENCE, PERSONAL INJURY AND PROPERTY CLAIMS POLICY AND PROCEDURE
1. Introduction
Gateshead Health NHS Foundation Trust is committed to effective and timely investigation and response to any claim that includes allegations of clinical
negligence, personal injury or loss or damage to property. The Trust will follow the requirements of the NHSLA (National Health Service Litigation Authority) in the management of claims. Every member of staff is expected to co-operate fully, as required, in the assessment and management of each claim. The Trust also aims to ensure that its policies will be compliant with the Human Rights Act 1998. This policy is based on current guidance from the NHSLA. Any future changes in guidance will be followed and may supersede the procedures laid down in this policy.
There are a number of claims which may not fit the remit of the NHS Litigation Authority. These fall into two categories and relate to personal injury.
The first is in respect to claims which arise in respect to injuries received prior to commercial insurance being available to the NHS. These are the responsibility of the Strategic Health Authority who now take over the management of the claim. The second is in respect to claims for which the Trust was commercially insured which will be managed by the relevant insurance company in conjunction with the Legal Services Manager.
2. Policy scope
The policy covers all Litigation and potential litigation received by the Trust in respect to Clinical Negligence, Personal Injury and Buildings and Contents as well as all other issues which fall within the cover provided by the NHS Litigation
Authority and Commercial Insurers providing insurance cover to the Trust.
3. Aim of policy
To provide a framework in order to manage all litigation against the Trust and to deal with any other legal issues which may arise in respect to services provided by the Trust.
4. Duties – roles and responsibilities
Board level responsibility for claims management
Overall responsibility for risk management within the Trust rests with the Chief Executive who will delegate this responsibility on a day to day basis to the Director Nursing, Midwifery and Quality. Responsibility for ensuring that proper
arrangements are in place to deal with any clinical negligence, employer’s liability, public liability and property claims which may arise rests with the Director of Estates & Facilities who will ensure that the Chief Executive, the Patient Quality, Risk and Safety Committee and/or the Trust Board are kept advised of all major
Director of Estates and Facilities
The Director of Estates & Facilities will delegate responsibility for the day to day management of claims to the Legal Services Manager.
The Legal Services Manager
The Legal Services Manager is responsible for the conduct, control and documentation of all claims and potential claims.
The Claims Management Procedure will be triggered by the receipt of all new claims, correspondence indicating that a claim is to be investigated or considered, Letter of Claim or Court Proceedings and/or the notification of a potential claim. The Guidelines for Investigations detail the triggers for investigations/root cause analysis.
The Legal Services Manager will carry out such preliminary action, investigations and analysis of reportable claims as is required by the NHSLA and will liaise with the NHSLA as necessary over the conduct of such claims.
The Legal Services Manager will ensure that there is liaison with the relevant line manager if corrective/remedial actions are required.
Arrangements will be made to ensure that in the absence of the Legal Services Manager essential claims management activities will be carried out.
The legal services department
See paragraph 6.4 below.
Medical Director
The Medical Director will be advised of all clinical claims. He will be responsible for the approval of Defence documents in respect to all clinical claims where
admissions are to be made. He will be informed whenever it becomes necessary to make admissions as to liability in Letters of Response in respect to clinical claims.
Divisional directors/clinical leads
Divisional directors/clinical leads will be advised of all clinical claims arising within their division/department. They may be required to provide in-house clinical opinions in respect to the validity of specific claims.
Divisional managers/heads of service
Divisional managers/heads of service will be advised of all claims affecting their division/department.
• In respect to clinical claims they will be responsible for ensuring that
appropriate action is taken in respect to any issues that are identified during the course of the investigation.
• In respect to personal injury claims divisional managers/heads of service will compile the required documentation for disclosure and will provide this to the Legal Services Manager in a timely manner. They will also ensure that, when appropriate, staff are made available for interview by the claims manager or claims investigator from the NHS Litigation Authority.
All employees
All employees of the Trust have a contractual responsibility to assist the Legal Services Department in the investigation of claims, both clinical and non clinical.
The NHS Litigation Authority
See paragraph 6.1 below.
5. Definitions
Definitions are set out, as required, within the body of the policy
6. The management of claims
6.1 The role of the NHS Litigation Authority 6.1.1 Status and purpose
The National Health Service Litigation Authority (the Authority) is a Special Health Authority set up under Section 11 of the NHS Act 1977. Its date of commencement was 21st November 1995.
The principal task of the Authority is to administer schemes set up under Section 21 of the National Health Service and Community Care Act 1990. This enables the Secretary of State to set up one or more schemes to help NHS bodies pool the costs of any “loss of or damage to property and liabilities to third parties for loss, damage or injury arising out of the carrying out of their functions”. There are currently five schemes:
• A scheme covering liabilities for alleged clinical negligence1 where the original incident occurred on or after 1st April 1995 (the “Clinical Negligence Scheme for Trusts” or CNST); • A scheme covering liabilities for clinical negligence incidents
which occurred before that date (the “Existing Liabilities Scheme” or ELS);
• A scheme covering the outstanding liabilities for clinical
negligence in respect of the former Regional Health Authorities; • A Scheme relating to any liability to any third party where the
original incident occurred on or after 1 April 1999 (the “Liability to Third Party Schemes” or LTPS);
1
A clinical negligence liability is defined for the purpose of this document as “any liability in tort owed to a third party in respect of or consequent upon personal injury or loss arising out of or in connection with any breach of a duty of care owed by that body to any person in connection with the diagnosis of any illness, or the care or treatment of any patient, in consequence of any act or omission to act on the part of a person employed or engaged by [an NHS trust or health authority] in connection with any relevant function of that [body] “See regulation (4) of the NHS (Clinical Negligence Scheme) Regulations 1996. SI. 1996/251
• A scheme relating to any expenses incurred from any loss or damage to property where the original loss occurred on or after 1st April 1999 (the “Property Expenses Scheme” or PES). For the purpose of this document, the five schemes are referred to together as “the Schemes”.
6.2 Day to day management of claims
On a day to day basis, local responsibility for dealing with all claims against the Gateshead Health NHS Foundation Trust will rest with the Legal Services Manager.
The Director of Estates and Facilities Management
The Legal Services Manager will make arrangements for the day-to-day handling of claims in accordance with agreed Trust procedures and NHS Litigation Authority guidelines.
6.3 Reporting guidelines
6.3.1 CNST (Clinical Negligence Scheme for Trusts)
Under the CNST Reporting Guidelines, October 2008, when a
significant litigation risk has been established and a realistic valuation of a possible claim as been made, the matter becomes reportable to the NHSLA. One of a number of possible situations may arise: • Incidents reported which are graded red (NPSA Reporting
Procedures) that reveal a possible breach of duty leading to a potential large value claim (damages over £250,000) must be reported as soon as possible, usually before a claim is made. (i.e. Before a Letter of Claim or Proceedings are received) • Incidents which have the potential to become a group action
involving a number of patients (eg failure of screening services) • Claims arising from the alleged negligence or serious
professional misconduct of a clinician or team which has affected a group of patients.
• Claims arising from a complaints investigation where the response, on the facts, indicates that an admission of liability has been implied.
• Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value.
• Letters of claim as the first indication of any action. • The receipt of court proceedings
• Every effort will be made to ensure that potential claims are brought to a satisfactory conclusion without the necessity of a court hearing, by means of discussion, negotiation and, if applicable, mediation.
6.3.2 LTPS (Liabilities to Third Parties)
Under the RPST Reporting Guidelines all claims which are above the Trust excess (Staff claims £10,000, other Personal injury claims £3,000) are reportable to the NHS Litigation Authority and must be accompanied by a completed document list and LTPS report form. Claims which fall below the NHSLA excess may be managed in house by the Trust.
6.4 Role of the Legal Services Department
The Legal Services Department will:
• be responsible for maintaining a log of all new claims received • Inform the Complaints Manager of the receipt of all claims to enable
any complaint documentation to be provided for disclosure. If a complaints file exists all complaints working papers will be obtained from the person conducting the investigation.
• Be responsible for ensuring that the Pre-Action Protocol for the Resolution of Clinical Disputes is followed, including responding to Letters of Claim and forwarding them to the NHSLA, within the time scales laid down.
• Ensure the disclosure of medical records, within the time scales laid down, in the Data Protection Act 1998 or the Access to Health Records Act 1990 as applicable.
• Receive, acknowledge and process all new potential claims that arise against Gateshead Health NHS Foundation Trust.
• Identify and arrange for the preservation of relevant records and other items, such as equipment involved in incidents, etc.
• Make certain initial investigations have been made and a preliminary analysis has been done.
• Report potential claims to the NHSLA in accordance with their reporting guidelines.
• Establish and, as necessary, maintain contact with relevant staff and former staff.
• Identify if there are any reporting requirements to external
organisations and whether such organisations should be involved in the investigations/Root Cause Analysis. This may include
organisations as detailed within appendix 1 of this document. External agencies may need to be involved for example:
o The Health & Safety Executive where a RIDDOR report had been made relating to the original incident
o Coroner – where the claim relates to a fatality
o Police – where a criminal offence has occurred or is suspected o Professional regulatory bodies – where allegations of negligence are
involved.
This list is not exhaustive.
Where claims have initially been investigated as a result of an incident report, appropriate external agencies will have been involved at that stage. In terms of new claims where investigations have not yet been carried out, the
circumstances of each individual case will determine which external agencies should be brought into the investigation and reporting process and when. • If a claim is considered to be justified and admissions need to be
made the following delegated limits will apply to the authorisation of the Litigation Authority to make such admissions. The same limits will apply to authorisation of settlement of claims which are not governed by the NHSLA procedures (e.g. Insurance Claims)
o Clinical Claims
Wherever possible authorisation will be obtained from the Medical Director or one of the deputies before any admissions of liability are made for all claims valued in excess of £25,000. For claims below this value the Legal Services Manager has delegated authority to make admissions.
o L.T.P.S. Claims
For all non clinical claims the ultimate decision as to whether admissions will be made rests with the NHS Litigation Authority. This information will be relayed to the appropriate executive director / divisional manager as soon after a decision is reached as possible.
o Legal expenses
o Most legal expenses arising from claims will be met directly by the Litigation Authority. From time to time, however, the Trust may need to incur legal expenses in its own right. In such circumstances (e.g. Inquests and obtaining miscellaneous legal advice) the following delegated limits will apply:
Legal Services Manager up to £10,000 Director of Estates & Facilities up to £25,000
Over £25,000 authorisation will be in accordance with Financial Standing Orders
o In the event of disagreement about proposed admissions of liability in clinical claims, or if there are issues of
sensitivity or anticipated repercussions, it is the
responsibility of the Legal Services Manager to bring this to the attention of the Director of Estates & Facilities. o Attend with the Trusts legal advisers, any Directions
hearing before the District Judge arising from the defence of a claim and any other court attendances as required.
o Arrange for the notification of a Losses Report Form of all payments made in settlement of personal injury claims (e.g. public and employers liability) in order to allow them to be entered into the Trusts register of losses and
special payments. Where the payment has been partially funded from the Trusts insurers or the NHS Litigation Authority this will be noted in the register. Where a claim is settled out of court under the Trusts delegated powers for a sum in excess of £1,000 arrangements will be made for completion of the checklist recommended in EL(96)11 Annex C. o In the event that it is deemed appropriate to defend a
claim to trial the Legal Services Manager will ensure that the witnesses are notified of trial dates and ensure that they are supported through the process of giving evidence in a court setting.
6.5 Liaising with the NHSLA in the management of claims.
It is the Legal Services Manager’s role to prepare reports and other
submissions as required for the NHSLA, SafeCare Council, and/or Patient Quality, Risk and Safety Committee and/or Trust Board if required.
o Preparing regular reports on:
The number and aggregate value of claims and details of any individual claims
The progress and likely outcome of these claims, including the expected settlement date, if possible
The final outcome of the claim
o Support staff involved in the litigation process.
o Ensure that risk management issues arising from claims are shared as necessary with the Head of Risk who will ensure that they are entered onto the Trust Risk Register.
o Ensure that Trust wide issues are shared within Safecare Council and/or Patient Quality, Risk and Safety Committee.
o Ensure that lessons learned in the process of claims management are used for risk management purposes in the context of future service provision.
o Liaise with the Head of Communications as necessary where there is a possibility of publicity occurring.
6.6 The use of legal advisers
Solicitors will be instructed by the Trust to prepare preliminary analysis documents. Thereafter defence solicitors will be instructed by the NHS Litigation Authority except for cases which do not fall within the NHSLA schemes when judgement as to when solicitors are appointed will be made by the Legal Services Manager.
6.7 Information on claims
The Legal Services Manager will establish and maintain a database of all claims relating to the Trust, including information about the nature of each claim, financial data and other information. This database will assist the Legal Services Manager to provide relevant and timely information as
required either by, the Safecare Council, the Patient Quality, Risk and Safety Committee or the NHSLA. Due regard will be paid to the confidentiality of data relating to individuals. Data will be processed in compliance with the Data Protection Act 1998.
6.7.1 Delegated financial responsibility
The NHSLA has responsibility for the financial management of all clinical negligence claims. It also has responsibility for the financial management of all reportable LTPS and PES claims above the designated excess levels.
All payments in settlement of personal injury claims will be entered in summary form in the register of losses and special payments by the NHSLA. Any contributions from the NHSLA (LTPS or PES) will be noted in the register. (See also 6.4)
6.8 Risk management issues
All staff are expected to co-operate fully in risk management issues.
All clinical and non-clinical incidents will be reported promptly in accordance with RM04 the Incident Reporting and Investigation Policy (including Serious Untoward Incident Policy). Where it is thought that there may be a
possibility that a claim against the Trust may follow, the Legal Services Manager will be notified immediately.
For all such potential claims, a root cause analysis should be carried out with witness statements. All information should be sent to the Legal Services Manager.
High standards of record keeping documentation are essential in clinical records to ensure that the facts are available in the event of a claim being made.
When staff are asked to provide reports, statements or comments, they will be reminded as necessary on whether their reports are potentially
disclosable in the event of a claim proceeding. 6.8.1 Grading of claims
The Legal Services Manager should be able to arrange for all claims to be graded, taking into account the original incident report, any complaints issues and the outcome of the investigation.
All of the claims should be graded according to:
Actual severity – taking account of the seriousness of the harm caused as well as the financial implications of the claim.
• Future risk to patients.
• Future risk to the organisation. • Likelihood of claimant success.
Grading may be subject to change on the receipt of expert reports or as further information comes to light.
6.8.2 Risk level and level of investigation and review
If the incident (leading to the claim) was previously reported as an adverse incident, an investigation and/or a Root Cause Analysis
should already have been undertaken with the results being presented to the Safecare Council/PQRS Committee for remedial action to be taken and monitored, if appropriate.
6.8.3 Root Cause Analysis
The Legal Services Manager will adopt a root cause analysis approach to all investigations, which might lead to claims. The
purpose of conducting a Root Cause Analysis of potential claims is to identify the real causes of the incident and to establish legal causation. Root Cause Analysis can also reveal underlying system failures and other contributory factors that may have had an impact on the incident. In line with national requirements the Trust is applying a root cause analysis approach to investigations into adverse incidents, complaints and claims. Further information is contained in the Trusts Incident Reporting and Investigation Policy.
Information on risk management issues arising and improvements undertaken will be reported to the Safecare Council and/or the Patient Quality, Risk and Safety Committee.
6.8.4 Risk Management Reports
The NHSLA announced in 2010 that Risk Management reports would be provided to Trusts by panel solicitors where risks are identified and remedial action required.
In the event that such reports are received and action is required a copy of the report will be sent to the clinician involved, the Divisional Director and theDivisional Manager who will be required to formulate an action plan to remedy the problem. The Head of Risk will be provided with a copy of the report and action plan. Outcomes will be reported to PQRS.
6.9 Claims management procedure
The Legal Services Manager will be responsible for the following actions: (see also paragraphs 3.4 and 6.2)
6.9.1 Pre-action Protocols
The Gateshead Heath NHS Foundation Trust recognises and will at all times adhere to the pre-action protocols for the resolution of clinical disputes and personal injury claims, in the interests of:
• Encouraging a climate of openness when something has “gone wrong” with a patient’s treatment or the patient is dissatisfied with that treatment and/or the outcome.
• Encouraging the adoption of a constructive approach to complaints and claims, and accepting that concerned patients are entitled to an explanation and an apology if warranted, and to appropriate redress in the event of negligence.
• “Building on and increasing the benefits of early but well informed settlement which genuinely satisfies both parties to dispute”.
6.9.2 Pre-action Protocol for clinical negligence claims Obtaining the health records:
The patient and/or their legal adviser may request copies of the patient’s clinical records (which includes any records not held in the main file a well as x-rays, CT scans, test results etc). The request should be made in writing to the Trust. These requests should adhere to the Department of Health guidelines and should when properly completed constitute satisfactory evidence for the Trust purposes of the patient’s consent for the release of their records to their legal and other expert advisors. This can be in the form of a pre-action protocol Letter before Action.
The Trust must provide copy records within 40 days of this request. In the rare circumstances that the Trust is unable to comply with a request within 40 days, the problem should be explained to the patient or their representative quickly, and details given of what is being done to resolve it.
If the records are not provided to the patient or their representatives within 40 days the patient can apply to the court for an order for pre- action disclosure. This will have adverse cost consequences for the Trust.
Letter of Claim
If the patient decides that there are grounds for a claim, they or their solicitors may send a Letter of Claim to the Trust.
The Letter of Claim should contain a clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence. It should describe the patient’s injuries, the present condition and prognosis, and the estimated financial loss incurred by the claimant. In more complex cases a chronology of the relevant events should be provided. Sufficient information should be given to enable the Trust to commence
investigations if it has not already done so and for the NHSLA to put an initial valuation on the claim.
The Letter of Claim should be acknowledged by the Trust immediately and then forwarded to the NHSLA, as they will have to make an initial response within 14 days of receipt.
Under a set protocol, the claimant should not issue proceedings until after 4 months from the date of the Letter of Claim, unless there is a limitation issue and/or the patient’s position needs to be protected by
early issue but there will be occasions when this stage will be omitted and proceedings will be issued.
Letter of response
The Trust will continue to investigate the claim in conjunction with the NHSLA and within 4 months of the Letter of Claim provide a reasoned answer to it in the form of a Letter of Response. The NHSLA will liaise with the Trust to determine which issues of breach of duty and/or causation are admitted and which are denied and why. Documents must be enclosed which are material to the issues in dispute and which would be likely to be ordered to be disclosed by the court during proceedings.
The Letter of Response may be drafted by the NHSLA the Trust or the legal advisers appointed by the NHSLA. If admissions are to be made approval for the letter will be obtained from the Trust Medical Director or one of his deputies.
It should be noted that admissions made in a Letter of Response are binding.
6.9.3 Pre-Action Protocol for Personal Injury Claims Letter of Claim
Receipt of a Letter of Claim is likely to be the first indication the Trust receives of a potential personal injury claim2.
The Trust will acknowledge the Letter of Claim within 21 days, conduct an immediate investigation into the issues raised. It must be forwarded with the outcome of the investigations and a completed document list as per the NHSLA guidelines, within 28 days if possible but in any event within 42 days. The NHS Litigation Authority will refuse to accept the claim if the document list is not attached and the required documents not included.
Under the protocol, the claimant should not issue proceedings until after 3 months from the date of the Letter of Claim, unless there is a limitation issue.
Letter of Response
The NHSLA will continue to investigate the claim in conjunction with the Legal Services Manager and within three months of the
acknowledgement of the claim provide a reasoned answer to it in the form of a Letter of Response. If liability is denied, reasons must be given for the denial, and documents must be enclosed which are material to the issues in dispute and which would be likely to be
2
The accident may have been reported in accordance with the Gateshead Heath NHS Foundation Trusts’ Incident Reporting Policy or Serious Untoward Incident Policy and Procedures.
ordered to be disclosed by the court during proceedings. If liability is to be admitted this must be agreed by the Legal Services Manager. The letter of response will usually be drafted by the NHSLA but the Legal Services Department may be requested to draft the response on occasions. Admissions made in a Letter of Response are binding for all claims.
6.9.4 Pre-action Protocol for Property Claims
There is as yet no NHSLA protocol for property damage only claims but the courts will expect the parties to act in the spirit of the personal injury protocol which will be applied by the Trust.
Claims for damage or loss of property will be handled in accordance with the Liabilities to Third Parties Scheme (administered by the NHSLA).
Damage, loss or destruction of the Trusts property will be investigated and reported in accordance with the Property Expenses Scheme (PES) (administered by the NHSLA)
6.10 Investigation of claims
6.10.1 Investigation of claims
The receipt of any of the following will trigger an investigation: • A request for records pursuant to the pre-action protocol for
clinical negligence disputes which intimates a claim against the Trust; or
• A Letter of Claim; or • A Claim Form.
Internal investigations must be commenced immediately upon receipt of one of the above. The aim of the initial investigation will be to determine whether the claim has any merit and will assist the Legal Services Manager to consider whether further in depth investigation is required by way of root cause analysis.
An early decision may be made to investigate an incident or complaint which is brought to the attention of the risk management Team as a serious untoward event which may result in a claim at a future point in time.
The Legal Services Manager should be notified during the course of the regular CLIPA meetings of any incident or complaint that could result in a claim. Very serious claims are likely to have been the subject of an adverse incident report in accordance with the Trust’s Incident Reporting, Serious Untoward Incident and/or Complaints
Policies. The NHSLA will link into that investigative process if that proves to be appropriate.
6.10.2 Principal aims of all investigations
The principle aims of any investigation will always be as follows: • To identify the full names and titles of all staff involved; • To establish an account of the original incident;
• To identify or maintain all written records; and
• To establish and maintain contact with the staff involved and to obtain an in-house expert opinion.
The Legal Services Manager will then pursue further investigations on behalf of the NHSLA depending on whether the claim is for clinical negligence, personal injury or property damage or loss.
6.10.3 Investigation of a Clinical Negligence Claim
Legal Services will seek information from all staff who have been involved in the relevant episode of care. The objectives of this will be to gain appropriate information as set out above by;
• Obtaining preliminary comments from all potential witnesses; • Obtaining authority to release the medical records to the
claimant;
• Obtaining details of any incidents and any other similar incidents.
• Notifying the risk management team if risk management issues are identified to enable them to;
o Identify the steps required to avoid a repeat incident and agree a plan for corrective action;
o Identify a time scale for the implementation of corrective action; and
o Notify the relevant divisional manager to ensure appropriate actions to are taken where necessary • Taking an initial view on liability and then seeking the views of
the Trust legal advisers if appropriate.
• Ensuring that further in depth investigation/root cause analysis is conducted if it is deemed appropriate from the initial findings.
• Arranging meetings between solicitors and clinical staff where this is deemed appropriate for the investigation.
6.10.4 Investigation of a Personal Injury Claim.
The Legal Services Department will obtain the incident report form relating to the incident and will conduct an initial investigation as for clinical negligence claims and will then report the claim to the NHS Litigation Authority who will continue the investigation.
There is no requirement to report the claim to the NHSLA if it falls below the Trust excess. In these circumstances the Trust Legal Services Manager may retain conduct of the claim.
The NHSLA Claims Investigator will arrange a meeting via the Legal Services Manager with the appropriate manager, or head of
department, the line manager and any other relevant witnesses. The objectives of the meeting will be as set out above and to:
• Obtain preliminary comments from all potential witnesses. If these have not already been obtained by the Legal Services Manager and in any event to corroborate the content thereof. • Confirm with the Legal Services Manager that all relevant
documentation has been disclosed and to explore whether any other relevant documents might exist.
• Obtain details of similar incidents and in discussion with the Legal Services Manager decide whether any risk management issues have been identified.
• Decide, in conjunction with the Legal Services Manger whether liability rests with the Trust and agree on what actions will be taken in the immediate future.
6.10.5 Investigation of a claim relating to damage or loss of property
Investigations in respect of damage or loss of property will be carried out by
the Legal Services Manager, head of service and any other appropriate
person. The objectives of the investigation will be as set out above and to:
• Obtain preliminary comments from all potential witnesses; • Obtain the relevant documentation which may include copies of
any incident report forms, the RIDDOR report to HSE, any other health and safety documentation, risk assessments or
photographs. This list is not conclusive and further
documentation may be required depending on the facts of the case;
• Obtain details of similar incidents and decide upon and create an action plan for corrective action.
• Conduct a root cause analysis if this is deemed to be appropriate.
• Once the claim is reported to the NHS Litigation Authority a loss adjuster will be appointed to conduct an independent
investigation. This will be arranged via the Legal Services Department who will make the necessary arrangements for meetings with the appropriate personnel.
6.11 Signing of legal defence documents on behalf of the Trust
During the course of defending a claim it will be necessary for some
documents including Defence documents to be signed on behalf of the Trust. In summary they will be handled as follows:-
6.11.1 Clinical Negligence claims Statements of Truth
• Defence documents
All statements of truth on defence documents will be signed by the Medical Director or one of his deputies. In the absence of the Medical Director or one of his deputies defence documents, which make admissions, will be signed by an Executive
Director. Where no admissions are made, this may be delegated to the Legal Services Manager.
• Statements
Statements of truth on individual statements will be signed by the person whose statement is required
• Other legal documents
Statements of truth on other legal documents may be signed by the Legal Services Manager but this may be delegated to the Trust’s legal advisers as at “Court documents” below.
• Disclosure statements
Statements confirming that all disclosure has been affected will be signed by the Legal Services Manager on behalf of the Trust
• Court documents
Legal documents required by the courts will normally be signed by the Legal Services Manager but this may be delegated to the Trusts legal advisors following discussions with the Legal
6.11.2 Risk Pooling Scheme claims Statements of Truth
• Defence documents
The Director of Estates & Facilities will sign the Statement of Truth on all defence documents. In the event that the Director of Estates & Facilities is not available another executive director will be required to sign the document whenever admissions are to be made. Where no admissions are to be made this may be delegated to the Legal Services Manager
• Statements
Statements of Fact will be signed by the individual for whom the statement has been written
• Disclosure statements
Statements confirming that all disclosure has been effected will be signed by the Legal Services Manager on behalf of the Trust
• Court Documents
Legal documents required by the courts will normally be signed by the Legal Services Manager but this may be delegated to the Trusts Legal Advisors following discussions with the Legal Services Department.
6.11.3 Property Expenses Scheme
All arrangements will be as 6.11.2 above
6.12 Remedial action
Because of the nature of litigation it is often the case that by the time a claim is indicated all necessary remedial actions have been carried out.
Most claims for which the Trust is deemed to be liable will have had thorough investigations often before a claim has been intimated.
Risk issues will be identified and shared at the Safecare Council and Patient Quality, Risk and Safety Committee and, if appropriate, the relevant
directorate will be requested to provide a plan for any required actions prior to the closure of the claim file.
6.13 Instructing the NHSLA
It is a requirement that the Trust must obtain advice from the Trust solicitors or the NHS Litigation Authority for all claims.
The Trust may instruct the NHSLA to act on its behalf on receipt of any personal injury claim and for all clinical negligence cases they must be involved once a Letter of Claim or Proceedings are received.
Legal advice received from the Trust Solicitors or NHSLA should always deal with Breach of Duty, Causation, an assessment of the strength of the
Defence on the balance of probability, the quantum of damages including a best and worst case scenario and the likely costs of defence.
The Trust will co-operate with the NHSLA at all times, and the Legal Services Manager will respond to requests for further information and will ensure that the NHSLA or solicitors directly instructed by them are in a position to meet the Court’s timetable for conduct of a claim.
The NHSLA should provide quarterly updates on the progress of all claims.
6.13.1 Resources
The NHS Litigation Authority will be responsible for:
• Expenditure on the schemes whether centrally resourced i.e. funded by the Department of Health or by contributions from members.
• The costs of administering the schemes and any additional tasks as specified.
• Invoicing the Trust in respect to their handling fees and sub excess fees.
6.13.2 NHSLA aims, objectives and functions Aims and objectives
The Secretary of State’s overall aims for the Authority in administering the Schemes are to promote the highest possible standards of patient care and to minimise the suffering resulting from any adverse
incidents, which do nevertheless occur. In particular, the Authority will contribute to these aims by its efficient, effective and impartial
administration of the Schemes and by advising the Secretary of State on any changes that may be needed in the light of experience in running the Schemes and of changing circumstances.
Subject to this overriding aim the specific objectives of the Schemes are set out below. The Human Rights Advice and Information Service is intended to minimise the cost to the NHS of obtaining legal advice in relation to the Human Rights Act 1998, by providing NHS bodies with access to a centrally co-ordinated information service.
Maximising resources available for patient care
To minimise the overall costs of clinical negligence, third party liabilities and property expenses to the NHS and thus maximise the resources available for patient care, by defending unjustified actions robustly, settling justified actions efficiently, and contributing to the
incentive for reducing the number of negligent or preventable incidents.
Proper payments
To assess the amounts (if any) to be paid by each of the Schemes in relation to any particular claim, and to ensure that sums paid out are properly so paid.
Impact on patient care and NHS costs
To minimise the risk that patient care in a particular community is jeopardised by a large settlement against a local NHS body. To spread the costs of settlements more evenly over time.
Incentives to improved quality
To contribute to the improvement of the quality of patient care by providing incentives within the schemes for NHS bodies to improve cost effective clinical and non clinical risk management (excluding motor insurance), and by disseminating relevant information on clinical and non clinical risks highlighted by claims management experience.
To maximise the incentive for NHS bodies to ensure they contribute effectively to good quality improved claims management.
To develop and where appropriate provide education, training and development aimed at promoting the skills and competencies required for good claims handling and risk management for NHS employees. Access to appropriate remedies for genuine litigants
To ensure that, where liability has been established, patients or their representatives have appropriate access to remedies including, where proper, financial compensation.
Functions
The main function of the Authority in seeking to fulfil these objectives will be to administer the Schemes set up under Section 21 of the NHS and Community Care Act 1990, efficiently and effectively on behalf of the Secretary of State for Health and with due regard to the interests of Scheme members, other NHS bodies, NHS staff, and users of the NHS. In particular, the Authority will:
• Determine operational policy for the Schemes;
• Determine standards of risk management and claims handling for Scheme members (and NHS bodies generally), and so manage the Schemes so as to encourage the adoption of these standards throughout the NHS;
• Work closely with the Department of Health and any relevant non-departmental public body or arms length body in relation to performance and risk management in NHS bodies;
• Ensure the risk management standards developed by the Authority are complementary to the Department of Health’s controls assurance initiative within the NHS;
• Determine individual applications under each Scheme for financial support to help to meet the cost of settlements; • Manage the handling of claims so as to ensure a fair outcome
in the interests of the NHS and patients generally; • Assist the Department of Health in determining cash and
resource limits for ELS;
• Determine contributions from members towards the costs of the contributory Schemes;
• Determine effective arrangements for the management of Schemes and appoint and oversee scheme managers, if deemed appropriate, who will be appointed by competitive tender for periods of three to five years and who will be responsible for functions to be determined by the Authority; • Establish and maintain systems to ensure the correct payment
to claimants under the Schemes;
• Promote the availability of education, training and development packages available to NHS staff in respect of both claims handling and risk management contributing to and designing specific courses as appropriate;
• Develop and disseminate good practice guidance for claims handling and risk management consistent with wider
Department of Health and NHS initiatives;
• Assisting NHS bodies in compliance with the Human Rights Act;
• To undertake any other functions as may be determined from time to time by the Secretary of State for Health.
The Authority as with all other NHS bodies is subject to the requirement of clinical governance and expects members of the Schemes to comply with those requirements as appropriate.
7. Training
Training in the investigation of claims will be provided to senior management as part of Strategic Risk Management awareness programmes as reflected in the Trust Training Needs Analysis.
8. Equality and diversity
The Trust is committed to ensuring that, as far as is reasonably practicable, the way we provide services to the public and the way we treat our staff reflects their
individual needs and does not discriminate against individuals or groups on the grounds of any protected characteristic (Equality Act 2010). An equality analysis has been undertaken for this policy, in accordance with the Equality Act (2010).
9. Monitoring compliance with the policy
Standard / process / issue Monitoring and audit
Method By Committee Frequency
CLIPA Reports Legal
Services Manager SafeCare Council and PQRS Quarterly
Position on ongoing, new and settled claims
Report Legal Services
Manager
Trust Board Annually
10% of claims audited to demonstrate compliance with the policy including:
• Actions to be taken including timescales • Communications with relevant stakeholders where appropriate Audit Legal Services Manager PQRS Annually
Solicitors risk management reports
Completed action plans
Divisions Safecare As required
The department will co-operate with the audit departments both internal and external to enable them to conduct audit of the claims management processes.
10. Consultation and review
The policy will be reviewed on a two yearly basis or in the light of changes in guidance or legislation.
11. Implementation of the policy (including raising awareness)
All claims and potential claims against the Trust will be managed in accordance with this policy.
12. References
Ministry of Justice (1998) Pre action Protocols for the resolution of Clinical Disputes. Ministry of Justice (2009) Civil Procedure Rules
NHSLA CNST Membership Rules April 2001 revised March 2008. NHSLA RPST Membership rules August 1999.
Department of Health NHSLA Framework Document December 2002.
13. Associated documentation
This policy should be read in association with the following policies, procedures and guidance.
RM04 Incident Reporting Policy & Procedure including Serious Untoward Incidents Guidelines for Investigations
Appendix 1 External organisations to whom incidents may need to be reported and may need to be involved in investigations
Audit – District Audit – Internal
Centre for communicable disease control National Patient Safety Agency
Confidential Inquiries Coroner
Department of Health
National Clinical Assessment Authority Environment Agency
Food Standards Agency
Gateshead Primary Care Trust
South of Tyne & Wearside Mental Health Trust North East Ambulance NHS Trust
Strategic Health Authority Health & Safety Executive MHRA
Mental Health Act Commission
National Radiological Protection Board NHS Estates
NHS Litigation Authority Police
Professional regulatory bodies (e.g. GMC) Public Health Laboratory Service
Serious Hazards of Transfusion (SHOT) The Directorate for Counter Fraud Services
