Claims Management Policy

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1 Claims Management Policy April 2015 Author: Responsibility: Janet Young, Governance & Risk Manager All Staff should adhere to this policy Effective Date: April 2015 Review Date: April 2017 Reviewing/Endorsing committees Approved by Governance and Risk Sub Group 9 March 2015 Date Ratified by Executive Team 9 April 2015 Version Number 2 Related Documents Incident Reporting Policy Serious Incident Reporting Policy Type title of policy here Page 1

2 POLICY DEVELOPMENT PROCESS Names of those involved in policy development Name Designation Janet Young Governance & Risk Manager Names of those consulted regarding the policy approval Date Name Designation April 2013 Lynda Harris Head of IG Equality Impact Assessment prepared and held by Date Name Designation N/A Committee where policy was discussed/approved/ratified Committee/Group Date Status Risk Management Group 13 May 2013 Approved Risk Management Group 9 March 2015 Approved Executive Management Team 9 April 2015 Ratified Equality Impact Assessment Type title of policy here Page 2

3 Index Page 1. Introduction Policy Objectives Scope of Policy Indemnity provided by NHS Litigation Authority Types of Notification Clinical Negligence Claims Liabilities to Third Parties Property Expenses Scheme Claims outside the NHS LA Scheme Responsibilities and reporting structure CCG Governing Body Audit Committee Accountable Officer Corporate Services Manager Governance & Risk Manager Chief Financial Officer Directors/Managers Staff Incident investigation and root cause analysis Involvement of external agencies Requests for the disclosure of medical records Authorisation for payment Appendix 1 Clinical disputes pre-action protocol Appendix 2 Personal Injury pre-action protocol Type title of policy here Page 3

4 1. INTRODUCTION The word claim refers to any approach to the CCG to request payment or action as compensation for an alleged wrong committed by the CCG or its staff, or any claim lodged by the CCG under the terms of the Property Expenses Scheme. Bedfordshire Clinical Commissioning Group is committed to an effective and timely investigation in response to any claim made against them for clinical negligence or personal injury. As part of its risk management programme, the CCG is a member of the NHS Litigation Authority s Clinical Negligence Scheme for Trusts, Liabilities to Third Parties Scheme (LTPS) and Property Expenses Scheme (PES). The NHS Litigation Authority (NHSLA) is a Special Health Authority responsible for handling negligence claims against NHS bodies, administering a number of risk pooling schemes. The purpose of this policy is to set out Bedfordshire CCG s policy and procedure for the management of clinical and non-clinical claims. 2. POLICY OBJECTIVE The principal objective of this policy is to provide the process for claims management and reporting which takes account of national guidance, NHSLA reporting requirements and NHS Finance Manual. The procedure will also be used as an opportunity to learn lessons from adverse incidents that lead to claims. Claims management is separate from the disciplinary process, although some claims may identify information about serious matters, which indicate a need for investigation. Should this situation arise, this will be handled as a separate process, in accordance with the disciplinary policy and procedure. 3. SCOPE OF THE POLICY This policy and procedure will apply to all claims made against Bedfordshire CCG which relate to its services, liabilities to third parties covering employers liability, public liability, products liability and professional indemnity, and its property and equipment. Primary Care Practitioners, who are not employed by the CCG, are responsible for their own cover arrangements and claims management. 4. INDEMNITY PROVIDED BY THE NHS LITIGATION AUTHORITY The NHS Litigation Authority (NHSLA) is a Special Health Authority, which administers a number of risk pooling schemes: Clinical Negligence Scheme for Trusts (CNST), which covers liability for clinical negligence. Liabilities to Third Parties Scheme (LTPS), which covers public employers liability Type title of policy here Page 4

5 Property Expenses Scheme (PES) allows CCGs to make claims for loss or damage to property. The NHSLA appoint solicitors from its own panel to act for CCGs to defend where appropriate the claim or in reaching the best possible outcome dependant up on the breach of duty that has / may have occurred. Under the NHS Indemnity Provisions staff are covered for claims brought for clinical negligence arising from their employment with the CCG. This does not extend to independent contractors. The CCG makes a financial contribution to these schemes on an annual basis. Contributions are assessed on a number of factors including specialist services, numbers of staff employed, and the CCG s claims history. The protocols set out in Appendix A, present challenging timescales for case investigation and mandatory detailed response letters. Whilst the Governance and Risk Manager is responsible for the management and collation of data, it is important that managers and front line staff ensure that requests for claims-related documentation and other evidence are provided without any undue delay. Failure to meet the deadlines could result in increased costs and even legal proceedings commenced purely for claimants to be given documentation to which they are entitled. Any additional costs incurred arising from delays by the CCG is not provided for under the NHSLA s schemes, and will have to be met by the CCG 5. TYPES OF NOTIFICATION. 5.1 Potential claims Types of notification of a potential claim may come from one of the following: Complaint handled under the Complaints Policy Request for access to patient records handled by the Head of Information Governance. Incident Form identified by the Corporate Office Letters of potential claims handled by the Accountable Officer/Chief Operating Officer. If considered to be a high risk case or there are admissions to be made then they should not respond. They should notify the CCGs Claims Handler immediately sending all the documentation they hold to support this along with the letter and the draft admissions to be made. This will then be sent to the NHSLA for their consideration and instruction. 5.2 Claims Types of notification of a claim will come from one of the following: Letter of Claim handled by the Claims Handler under this Policy Type title of policy here Page 5

6 Court Proceedings Claim Form handled by the Claims Handler under this Policy Formal Letter of Claim, Service of Proceeding from Claimant or Solicitor handled by the Claims Handler under this Policy Where notification of a claim is received then it must be ed, faxed or scanned to the Claims Handler who is required to take immediate action. The original papers must follow by post and be sent the same day it is received directly to the CCGs Claims Handler marked Confidential. No Acknowledgement should be made to the claimant by any other member of staff. 6. CLINICAL NEGLIGENCE CLAIMS All claims for compensation arising from allegations of clinical negligence will be handled by the NHSLA and administered by the Governance and Risk Manager. The NHSLA s definition of a claim is: Allegations of clinical negligence and/or demand for compensation made following an adverse clinical incident resulting in personal injury, or any clinical incident which carries significant litigation risk for the CCG. A summary of the reporting requirements is given below and the CNST Claim Report Form is attached at Appendix B: Requests for disclosure of medical records to be processed with 40 days Check that sufficient initial information has been provided by patient or adviser and request more if necessary Collect, retain, page number and index relevant records Undertake preliminary analysis Have system in place for identifying adverse incidents, significant litigation risks etc. Report relevant cases to NHSLA within 2 months of request for records or sooner if event is serious All letters of claim and Part 36 Offers to Settle 1, to be notified to the NHSLA immediately Acknowledge letters of claim within 14 days Detailed response due within 3 months All legal proceedings to be notified immediately 7. LIABILITIES TO THIRD PARTIES The NHSLA s definition of a claim under the Liabilities to Third Parties Scheme is: 1 Claimants Part 36 Offers to Settle under the Pre Action Protocol for Personal Injury Claims Type title of policy here Page 6

7 A demand for compensation made following an adverse incident resulting in damage to property and/or personal injury. The NHSLA would also look to CCGs to report serious adverse incidents and/or serious adverse outcomes representing a significant litigation risk, prior to an actual demand for compensation being made. These may come to light through: Normal in-house incident recording/investigation Complaints which look highly likely to lead to claims Other matters identified through risk management processes The NHSLA seeks early notification, particularly where the following features arise: MP involvement Media attention Human Rights issues Multi-party actions Multiple claims from a single cause Novel, contentious or repercussive claims The Incident Form can be found in the Incident Reporting Policy and a summary of the reporting guidelines within which the CCG should report new claims to the NHSLA is set out below: Have a system in place for identifying and appropriately investigating and documenting adverse incidents as soon as they are discovered Report all Letters of Claim to the NHSLA immediately with a completed LTPS Report Form and all existing accident records, reports and related documents Acknowledge all Letters of Claim within 21 days All subsequent letters and in particular all Part 36 Offers to be notified to the NHSLA immediately Ensure priority is given to identifying, creating and sending further documents and information requested by the NHSLA on any claim. Priority assistance to NHSLA staff or others acting as their agents, in identifying and making readily available the personnel relevant to issues arising in any claim All legal proceedings to be notified immediately In processing any LTPS claims, the CCG is required to immediately report incidents or claims where the total cost of the case will approach or exceed the scheme excess. The standard excesses applying under LTPS are: 10,000 Employers Liability claims 3,000 Public Liability claims Type title of policy here Page 7

8 An assessment of the claimant s legal costs and any defence costs should be taken into account in determining whether any case is likely to result in a total expense approaching or exceeding the applicable excess. For those cases, where the value of the claim is less than the excess, it will be for the CCG to manage the claim. The NHSLA does, however, offer a claims handling service for which a notional handling fee will be charged, and the CCG would look to use this service. Any excess payments made will be reported by the Chief Financial Officer in accordance with the Losses and Special Payments requirements of the NHS Finance Manual. 8. PROPERTY EXPENSES SCHEME This scheme covers CCG buildings, plant, machinery and contents. Similar to the above two schemes, the NHSLA should be notified immediately of an incident where a claim is likely to be made. Annual excess levels are set by the NHSLA, together with upper threshold values. Excess Upper Threshold (Delegated Limit) Buildings/Contents 20,000 1,000,000 Any excess payments made will be reported by the Chief Financial Officer in accordance with the Losses and Special Payments requirements of the NHS Finance Manual.. 9. CLAIMS OUTSIDE OF THE NHSLA SCHEME Claims may be made against the CCG which do not come within the NHSLA Schemes, e.g. compensation claims because of maladministration. Any such applications will be processed by the Chief Financial Officer in accordance with the NHS Finance Manual and the CCG s Standing Financial Instructions. Any loss of personal effects by patients, staff or visitors whilst on CCG premises, which fall outside the NHSLA Schemes or the Schemes excesses, should be referred to the Chief Financial Officer. Any payments made will be reported in accordance with the Losses and Special Payments requirements of the NHS Finance Manual. 10. RESPONSIBILITIES AND REPORTING STRUCTURE 10.1 CCG Governing Body The Governing Body is responsible for ensuring that the organisation is doing its reasonable best to manage its affairs through the implementation of internal controls to manage risk. This includes approving the procedures for the management of clinical negligence, liability and property claims. Type title of policy here Page 8

9 10.2 Audit Committee Reporting directly to the Governing Body, the Audit Committee is responsible for reviewing and approving, where appropriate, losses and compensation payments Accountable Officer The Accountable Officer has overall responsibility for Bedfordshire CCG s programme of risk management. The Accountable Officer and Chief Financial Officer will approve the settlement of all claims Corporate Services Manager The Corporate Services Manager has overall responsibility for the management and administration of clinical negligence and liability to third party claims The Governance and Risk Manager The Governance and Risk Manager (Claims Handler) is responsible for the day to day management of potential claims. The role includes: Liaison with the NHSLA, solicitors and claimants Managing requests for clinical records Ensuring compliance with the pre-action protocols for personal injuries and resolution of clinical disputes. Reporting claims to the NHSLA in accordance with their reporting requirements. Ensuring that claims are examined in conjunction with complaints, reported incidents, accidents and near misses, to identify trends and that action is taken on these Chief Financial Officer The Chief Financial Officer is responsible for reporting to the Department of Health and the Audit Committee, any losses and special payments made in accordance with the NHS Finance Manual and the CCG s Standing Financial Instructions and has overall responsibility for the management of property expenses claims Directors/Managers All Directors and managers are responsible for ensuring that any reported incidents or complaints that could potentially result in a claim being made against the CCG, are immediately notified to the Governance and Risk Manager. Managers will be responsible for ensuring that all reporting requirements are fulfilled, e.g. completion of CCG accident/incident report forms, RIDDOR reporting etc. Additionally, they will participate in any necessary investigations in accordance with the CCG s Incident Reporting Policy. Type title of policy here Page 9

10 10.8 Staff All staff are responsible for referring without delay all claims and potential claims to their line manager, and should not attempt to deal with the matter themselves. Staff will participate fully in the management of claims through providing any relevant records, incident reports, complaint files, reports on areas the subject of the claim, together with any other supporting documentation. 11. INCIDENT INVESTIGATION AND ROOT CAUSE ANALYSIS Most claims will arise from incidents, which have already been reported in accordance with the CCG s Incident Reporting Policy or Serious Incident Policy, which details the process to be followed for: Incident risk categorisation Level of investigation required Reporting to external agencies Incident investigation process and responsible person Root cause analysis Identification of lessons to be learnt and sharing these. The investigation processes defined within these documents will be followed to support the management of any claims or potential claims. 12. INVOLVEMENT OF EXTERNAL AGENCIES The CCG s Incident Reporting Policy and Serious Incident Policy detail those external agencies which should be advised of an adverse event and kept informed of developments; the timescales for reporting; and the responsible person. The policy also sets out the arrangements for establishment of an internal panel to undertake a detailed examination of the incident. The Corporate Services Manager is responsible for determining the membership of such a panel, which may include external specialist advisors where there is insufficient expertise within the CCG, or an independent opinion is required. Expert advisors may be drawn from a variety of sources e.g. Health and Safety Executive, Medicines and Healthcare Products Regulatory Agency, NHSLA Assessors. 13. REQUESTS FOR THE DISCLOSURE OF MEDICAL RECORDS Requests for disclosure of clinical records are usually made under the provisions of the Data Protection Act, and there are three normal routes for these requests. by a patient or his representative directly (Personal Disclosure) by a solicitor requesting records in respect of a claim against another party (Third Party Disclosure) by a solicitor acting either to investigate or notify a claim against the CCG (Pre-Action Disclosure) Type title of policy here Page 10

11 All requests for Personal and Third Party Disclosure under the Data Protection Act 1998 will be managed by the Head of Information Governance, who will ensure that the provisions of the Act are complied with in terms of adhering to the timescales and costs for the release of records, liaising with the CCG s Caldicott Guardian and SIRO as appropriate. The Pre Action Disclosure is provided by the rules of the Court and imposes upon the CCG an onerous duty in respect of disclosure and is one that the CCG cannot ignore nor avoid. Therefore, the swifter all documents are collated and referred to the NHSLA the greater the prospect of both a full and proper consideration of the merits of the claim. This will enable an accurate and full Pre Action response to be given. Should there be no or inadequate disclosure with the Pre Action reply there are prospects of an adverse Court Order made against the CCG with regards to Pre Action Disclosure with costs awarded against it which the Trust may ultimately be responsible for. Authorisation for the release of documents must ensure that records do not contravene the Act, namely where the records contain information: likely to cause serious harm to the physical or mental health of a patient or any other individual. relating to or provided by an individual other than the patient (or health professional involved in the care of the patient) who could be identified, and has not given consent to the disclosure. Records of deceased patients are still governed by the Access to Health Records Act Applications for copies, under this Act, should only be granted to the personal representatives of the estate or to someone having a claim arising out of the death. Disclosure can be withheld where it is recorded in the notes that the patient does not want the information disclosed to a third party. 14. AUTHORISATION FOR PAYMENT The Accountable Officer and Chief Financial Officer have overall responsibility for approving the settlement of all claims. In line with the guidance contained within the NHS Finance Manual, the Accountable Officer and Chief Financial Officer have joint responsibility for agreeing the payment of any claims which fall below the NHSLA s excess levels. For payments made for non-nhsla claims, the Department of Health s and the CCG Board s delegated limits will apply. In the absence of either the Accountable Officer or Chief Financial Officer, one of the CCG s Directors will be empowered to act on their behalf. Type title of policy here Page 11

12 Appendix A CLINICAL DISPUTES PRE-ACTION PROTOCOL 1. PATIENT S REQUEST FOR MEDICAL RECORDS Provide sufficient information to alert Health Care Provider of adverse incident. Be as specific as possible as to nature of records required Adopt Law Society and Department of Health standard forms Health Care Provider (Within 40 days of request) Provides copy records Investigates claim if appropriate or advises patient of why records cannot be provided within timescale and action being taken. If Health Care Provider unable to provide records within 40 days Patient can apply to Court for pre-action disclosure with associated cost sanctions. 2. PATIENT S LETTER OF CLAIM Summary of facts and chronology Main allegations of negligence Injuries and loss sustained Reference to relevant documents If includes offer to settle must enclose offer, medical report, schedule of loss. 3. HEALTH CARE PROVIDER TO ACKNOWLEDGE LETTER OF CLAIM (Within 14 days of letter) Identify person dealing with matter. 4. HEALTH CARE PROVIDER TO PROVIDE FULLY REASONED RESPONSE (Within 3 months of letter) Admit claim in full or part (will be binding) Make specific denials of claim to include reasoning and own account of events Provide documents in support Respond to offer to settle if one exists If liability is admitted agree reasonable period to progress case. 5. PROCEEDINGS Patient should not issue proceedings within 3 months of letter of claim unless limitation period is about to expire. Type title of policy here Page 12

13 Appendix B PERSONAL INJURY PRE-ACTION PROTOCOL 1. CLAIMANT S LETTER OF CLAIM Summary of facts Main allegations of negligence Injuries and loss sustained Request details of insurance To be sent in duplicate, one copy each for defendant and insurer Schedule of Special Damages should follow as soon as is practicable. 2. DEFENDANT TO ACKNOWLEDGE LETTER OF CLAIM (Within 21 days of posting) Identify their insurers (if any) If no reply within 21 days, Claimant is entitled to issue proceedings. 3. DEFENDANT TO PROVIDE FULLY REASONED RESPONSE (Within 3 months of date of acknowledgement) 4. EXPERTS (Within 14 days) Admit claim in full or part (binding for all claims) Make specific denials of claim to include reasoning and provide supporting documents Make allegations of contributory negligence with supporting reasoning Before any party instructs an expert, a list of suitable experts should be served on other party. Other party may object to one or more of the named experts, a mutually suitable expert should be used. If other party objects to all proposed experts, parties may instruct expert of choice, with cost consequences If no objections raised by other party they are not entitled to rely upon own report unless other side or Court agrees or disclosure of report has been withheld. Either party may send to an agreed expert written questions on the report. If Defendant admits liability in whole or part, before proceedings are issued, any medical report obtained by agreement should be disclosed to other party. Claimant should delay issuing proceedings for 21 days from disclosure of report. Type title of policy here Page 13

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