Claims Management Policy Clinical Negligence and Liabilities to Third Parties Claims

Transcription

1 Claims Management Policy Clinical Negligence and Liabilities to Third Parties Claims Post Holder Responsible for Policy: Board Secretary and Head of Legal Services Directorate Responsible for Policy: Trust Management Contact Details: 3475 Date Written: November 2003 Date Last Revised: 2014 Approved By: Date Approved: Next Due for Revision: 30 October 2017 To be reviewed by: Clinical Incidents Complaints and Claims Review Committee (CICCRC) with delegated authority from the Executive Board CICCRC Date Policy Becomes Live: 1 November 2015 For use in: For use by: NNUHFT All Trust staff Version Information Version Updated By Updated On Description of Changes 5 Legal Services 2011 Updating and adapting existing policy to use NHSLA template. Addition of Monitoring Framework (Appendix D) 6 Legal Services 2014 Minor changes to reflect updates to other policies and guidance and to reflect changes to trust governance structure. 7 Legal Services 2015 To reflect reestablishment of the Clinical incidents Complaints and Claims Review Committee.

2 Contents Section Page 1 Introduction Purpose and Scope of this Policy Definitions Duties within the Trust General Issues Surrounding Claims Handling Delegation Limits Actions to be taken, timescales and Procedures for the Exchange of Information with Other Parties Confidentiality and Legal Privilege Support Mechanisms for Patients, Carers and Staff Procedure for Management of Clinical Negligence Scheme for Trusts (CNST) Claims Procedure for the management of Liabilities to Third Parties Scheme (LTPS) claims 8 6 Linking Claims Management with Incident and Complaints Management Communication with relevant stakeholders Investigation and Root Cause Analysis Claims Data Collection and Analysis Learning from Experience Equality Impact Assessment Monitoring Compliance with this Policy References Associated Documentation General Appendices A Learning from Claims B Statement Writing C Useful Contacts D Monitoring Framework... 19

3 1 Introduction Although the Trust is committed to providing the highest possible standard of care to its patients, and a safe hospital environment for staff, patients and visitors, it is inevitable that claims of one sort or another will arise from time to time. The Trust is therefore required to have a policy for handling those claims, to ensure that they are appropriately managed, that appropriate steps are taken to identify any underlying causes and to promote wider organisational learning where indicated. 2 Purpose and Scope of this Policy The Trust is committed to effective and timely investigation and response to any claims made against the Trust. Such claims should be handled fairly and consistently with due regard to the interests of both patients and the NHS. This Policy applies to the management of the following types of claim: clinical negligence; employers liability and public liability. It does not apply to claims or disputes arising out of contracts of employment. Nor does it apply to ancillary matters which may be covered by commercial insurance arrangements (such as vehicle insurance for Trust vehicles), disputes over private patient bills or contracts for goods or services. Adherence to this Policy should ensure that the Trust complies with the requirements of membership of the insurance schemes managed by the NHS Litigation Authority (NHSLA), the insurance provided to the Trust as part of the PFI Project and the Civil Procedure Rules. The Civil Procedure Rules include pre-action protocols which encourage openness between the parties to litigation in an effort to resolve disputes as quickly as possible. This Policy relates to claims made against the Trust. It does not apply to claims made by the Trust under the NHSLA Property Expenses Scheme, the procedure for which is detailed in a separate procedure for Property Expenses Scheme claims managed by the Finance Department. This Policy will also ensure that staff are clear about the process for managing claims (to include their responsibilities) and the support available to them if they are involved in this process. Monitoring of compliance with the Policy will enable any deficiencies to be identified at the earliest opportunity and improvements to be made for the benefit of the Trust and its service users. 3 Definitions 3.1 Claimant Any patient (or their representative), member of public, or employee who pursues a relevant claim for compensation against the Trust (other than relating to lost property). 3.2 Claim Where the context allows, any demand of the Trust for monetary compensation in respect of an incident (clinical or otherwise) which is alleged to have led to injury or loss. 3.3 Clinical Negligence Claims - Where a clinical negligence claim is made it will be alleged that clinicians have failed to work to a suitable professional standard and that, as a consequence, a patient has suffered injury and/or loss. 3.4 Clinical Negligence Scheme for Trusts (CNST) the scheme whereby NHS Trusts share the risks of litigation relating to allegations of clinical negligence. The Trust pays an annual fee and is thereby protected from the risk of paying large sums in damages from its current account. In return the Trust is required to meet the risk management standards set out by the scheme s administrators (the NHSLA). The CNST applies to clinical incidents occurring after 1 April

4 3.5 Existing Liabilities Scheme (ELS) - The Existing Liabilities Scheme (ELS) deals with those cases that involve any clinical incident that occurred prior to 1 April 1995, whereas CNST claims are those involving any clinical incident that occurred after 1 April Legally privileged document a document that was created with the dominant purpose of gathering evidence for use in actual or anticipated legal proceedings, or to obtain legal advice. 3.7 Letter of Claim a letter sent by the Claimant or their representative, before the issue of proceedings, which sets out the basis for the claim in accordance with the Civil Procedure Rules. 3.8 Liabilities to Third Parties Scheme (LTPS) A risk pooling scheme for NHS Trusts to provide protection against claims made by third parties (ie not patients) for example visitors. On the NNUH site, cover in relation to this type of third party claim is provided commercially by the PFI company (Octagon) which is responsible for the safe upkeep of the NNUH building and site. 3.9 NHSLA The organisation that handles negligence claims made against NHS bodies through membership schemes designed for this purpose. It is funded by contributions from NHS bodies and is often compared to having an in-house mutual insurer NHS indemnity NHS employers are ordinarily responsible for the negligent acts of their employees where these occur in the course of their NHS employment. Clinicians own medical defence organisations provide a separate indemnity scheme in respect of private practice Property Expenses Scheme (PES) this is a scheme administered by the NHSLA whereby the Trust insures against damage to property or equipment and business interruption. PES claims are covered under a separate process managed by the Finance Department. 4 Duties within the Trust 4.1 Trust Board The Trust Board of Directors has overall responsibility for litigation claims against the Trust. The Board receives assurance in relation to clinical governance and associated risks through the Executive Board and its governance sub-boards, to which the Board has delegated responsibility to oversee the Trust s Claims Management Policy. The Board receives regular reports from the Executive Board and governance subboards, which draw to the attention of the Board any matters of particular concern or that require it to take action. 4.2 Committee with Responsibility for Reviewing Claims Management The Executive Board has approved establishment of a Clinical Incidents Complaints and Claims Review Committee (CICCRC). The CICCRC is responsible for the review and analysis of data relating to claims and disseminates relevant information to Trust staff, not least through placing relevant papers from its meetings on the Trust s intranet. 4.3 Designated Executive Responsibility The Board Secretary has executive responsibility for claims management issues. 4.4 Senior Management The Head of Legal Services is responsible for: 2

5 Ensuring that there are appropriate procedures for the handling of all claims. Supervising the conduct of claims by the lawyers in the Trust s Legal Services Department. Maintaining a record of claims and a claims review system to identify appropriate risk management actions. Carrying out periodic audits of claims management and reporting the results to the CICCRC. 4.5 Investigating Manager On receipt of notification of any new claim, the claim will be allocated by the Head of Legal Services to one of the lawyers in the Trust s Legal Services Department who will be responsible for the ongoing conduct of that claim in the Trust and will act as investigating manager. Details of the investigation process are given on section 8 below. 4.6 Role of Clinicians/Staff/Specialist Advisors The Trust stands vicariously liable in civil proceedings for its employees acting in the course of their duties. This is sometimes described as staff having the benefit of NHS indemnity. All staff are therefore required to assist the Trust by supplying information where necessary to facilitate investigation of claims. This obligation continues even once a staff member has left the Trust s employment. The Legal Services Department should be contacted by staff without delay: If there is any indication that the Coroner, Police, Health & Safety Executive or other regulatory agency are involved with matters that have a realistic potential to be subject to legal action against the Trust. If a Claim Form (issued by the Court) relating to Trust activities is addressed to a staff member personally. If staff receive a request for medical records or a solicitor s letter addressed to them in a matter with realistic potential to become a claim against the Trust. Staff are expected to co-operate fully in the investigation of any claim providing comments or statements as requested in a timely fashion. Without the views of staff and some knowledge of what they would say at trial about relevant factual issues, it is impossible for the lawyers of the Legal Services Department to assess the merits of a claim and the prospects for successful defence. In respect of a potential clinical negligence claim, relevant clinicians will be asked to explain what they did and the reasoning behind any decisions they made. In some claims, the clinician may also be asked to advise as to what they would have done if certain factual circumstances had been different. Staff will be kept informed of the progress of the claim and consulted at appropriate points in the litigation process as directed by the Legal Services Department and/or the NHSLA and its legal advisors. Once the claim becomes reportable to the NHSLA in accordance with its Scheme rules, the claim will be managed in collaboration with the NHSLA. The NHSLA will commission any necessary independent expert evidence and staff will be given the opportunity to comment on the same, as appropriate. Staff are expected to cooperate with the Legal Services Department in identifying the root causes of any incident that has resulted in a claim and any necessary actions to manage any risks highlighted by a claim. 3

6 5 General Issues Surrounding Claims Handling 5.1 Who May Make a Claim A claim may be brought by the person who has been injured, who could be the patient, an employee or a member of the public. If the injured party does not have capacity to manage legal affairs or if they have died, a representative can be appointed to pursue the claim on their behalf or that of their estate. 5.2 Triggers for Invoking the Claims Procedure The claims procedure is triggered by any of the following events:- receipt of a request for disclosure for records under the relevant pre-action protocol indicating that the Claimant is contemplating legal action against the Trust; where a formal complaint is pursued under the NHS Complaints Procedure and there is a subsequent demand for compensation; where legal proceedings have been issued against the Trust; receipt of a Letter of Claim. 5.3 Delegation Limits The lawyers in the Trust s Legal Services Department have the delegated authority to liaise with the NHSLA and to make decisions with regards to claims management in liaison with the NHSLA, including decisions on settlement or defence. As determined by the Head of Legal Services, the lawyers have the authority to approve and sign litigation documents on behalf of the Trust. 5.4 Actions to be taken, timescales and Procedures for the Exchange of Information with Other Parties There are a number of time targets which apply to claims management and cost penalties may apply to non-compliance. Adherence to these timescales will promote the aim of resolving claims as quickly as possible. Provision of copy medical records under the Pre-Action Protocol for the Resolution of Clinical Disputes or Personal Injury within 40 days of receiving a properly authorised request and payment of fee. Reporting a potential clinical negligence claim to the NHSLA within 2 months of receiving an indication of a claim when the claim meets the CNST reporting criteria (Fifth Edition October 2008). Reporting a potential employer/public liability claim to the NHSLA immediately on receiving an indication of a Claim (in accordance with the LTPS Claims Reporting Guidelines October 2012). Acknowledging a Letter of Claim within 14 days of receipt. Report immediately to NHSLA any receipt of a Letter of Claim, nomination of expert or Part 36 offer of settlement. Report immediately to the NHSLA any Notice of Application to the Court or Order of the Court as and when received. Liaison with the NHSLA to respond to the Claimant s Letter of Claim with a Letter of Response (with either an admission or a detailed denial of liability) 4 months after 4

7 receipt of the Letter of Claim in a clinical negligence claim or 3 months in an employer/public liability claim Acknowledging the service of formal proceedings (ie. Claim Form, Particulars of Claim) 14 days from receipt. Liaison with the NHSLA to serve a Defence 28 days from receipt of proceedings (unless an extension is agreed). Further detail on the exchange of information with other parties is specified at 5.7, 5.8 and 7.0 below. 5.5 Confidentiality and Legal Privilege The principle of legal privilege underpins the relationship between lawyer and client. It protects the confidentiality of their communication, enabling the client to be candid and the lawyer to give accurate advice based on a complete knowledge of the facts. Legal privilege can therefore apply to Statements, documents or correspondence if the "predominant purpose" for which they have been prepared is "in anticipation of legal proceedings" (eg litigation or prosecution). Legal privilege can also be asserted with respect to documents or correspondence prepared to obtain or give advice in relation to the law and what should prudently and sensibly be done in the relevant legal context (eg Inquest proceedings). Staff should keep any legally privileged documents, including any correspondence they receive from or send to the Legal Services Department, filed separately from the medical records. Statements that are produced for risk management purposes or during the investigation of an incident or complaint are 'not privileged' and as such may be disclosed to a patient and/or their legal adviser. If staff are providing statements for such purposes, they should bear in mind that other interested parties (eg patient, Claimant, HSE) may be entitled to obtain copies. The House of Lords has recognised that the protection of legal privilege is a fundamental human right 1. Staff are entitled to exercise this right and if they intend a Statement to be confidential and, if it is prepared for the purposes of seeking legal advice or in anticipation of legal proceedings, it is sensible for this to be clearly stated. The Legal Services Department will hold documents for staff on its files in anticipation of future claims. Principles of medical confidentiality apply even to the context of litigation. Any request for disclosure of medical records in the context of litigation should therefore be passed to the Legal Services Department for processing and to apply appropriate safeguards as to consent. When corresponding with the NHSLA, the Trust will utilise the secure DTS wherever possible to ensure confidentiality. 5.6 Support Mechanisms for Patients, Carers and Staff Patients and Carers 1 Three Rivers v Governor & Co of Bank of England (no 6) [2004] UKHL 48 5

8 The Trust is aware that when things go wrong in healthcare the consequences can be very serious for the patient, their family and carers. Often, the patient and their family require ongoing treatment from the NHS, the organisation that has apparently already caused them harm. When a claim of negligence is made, the Trust is unable to offer individual legal advice to patients because of the obvious potential conflict of interest. However, patients and their relatives may benefit from receiving an apology and explanation from the Trust and confirmation that, if appropriate, lessons have been learned for the future. The NHSLA has issued guidance on providing apologies and explanation. The latest version dated May 2009 (available on encourages staff to be open and honest with patients and their families when there has been an unexpected outcome. The Trust endorses this guidance and encourages apologies, explanations and expressions of sympathy to be made in good faith. Apologies do not constitute an admission of liability and should focus on factual explanation rather than opinion as to culpability or fault. The determination of liability is the purpose of the litigation process once all the facts are known and considered. Staff should not pre-empt the process by reaching their own conclusions (eg by expressing any view on liability or the likely outcome of litigation). For the Trust to be liable in a clinical claim and for compensation to be due, there must have been a breach of a duty of care to the patient which has caused compensatable damage. On investigation of claims and incidents it often becomes clear that either there has not been a breach of duty or that, if there has, it has not caused damage (ie the patient would have come to harm in any event). It would therefore be unwise for staff to indicate to patients or their families that they believe that the Trust is liable in a matter or that they consider that compensation is definitely due to them. To assist in the provision of apologies and explanations, staff are referred to the Trust s Being Open Policy. Staff The Trust acknowledges that it is extremely rare that NHS staff set out deliberately to harm either themselves or others. Staff are usually doing their best to carry out their work in a safe and effective manner in order to benefit patients. It is also well recognised that allegations made against members of staff can prove extremely worrying and stressful, even if they are subsequently shown to be unfounded. Staff involved with actual or potential legal action should therefore not hesitate to: seek the advice and support of senior colleagues or professional representatives; utilise the confidential counselling service available through the Workplace Health and Wellbeing Department on Extension 3035; seek the advice and support of the lawyers in the Legal Services Department; utilise the advice and assistance of the lawyers in the Legal Services Department with respect to any aspect of an ongoing claim including statement preparation or the giving of evidence or request information/updates on the progress of any claim with which they are connected. If managers or individuals become aware that a member of staff is experiencing difficulties in association with a claim they should consider referring them for advice as above, for example to a senior professional colleague, the staff of the Legal Services 6

9 Department or the Workplace Health and Wellbeing Department Confidential Counselling Service on extension The lawyers in the Legal Services Department are available to provide legal advice to Trust staff with respect to claims or to discuss situations likely to give rise to claims or other legal action concerning the Trust. 5.7 Procedure for Management of Clinical Negligence Scheme for Trusts (CNST) Claims All clinical negligence claims will be dealt with by the Legal Services Department until they become reportable under the CNST Reporting Guidelines. The ELS scheme is now in run off and therefore these cases should also be dealt with in accordance with the NHSLA CNST Reporting Guidelines (Fifth Edition October 2008). This Policy is premised on the understanding that the Trust ensures that by employing specialist lawyers in its Legal Services Department, claims will be managed in accordance with the CNST Membership Rules, the CNST Reporting guidelines and the Civil Procedure Rules. In managing claims the Trust will comply with its obligations under the Duty of Candour in conjunction with the NHS Litigation Authority and in compliance with the Trust s Being Open Policy. Although the incident reporting system may have alerted the Trust to an adverse event at an earlier time, it is possible that a request for Pre-Action Disclosure may be the first indication of the circumstances giving rise to a claim. The Legal Services Department will undertake to do the following as indicated by the circumstances of the case:- On receipt of request for disclosure of records from a patient or their Solicitors which indicates that a clinical negligence claim is being contemplated, obtain all medical records and x-rays pertaining to the treatment in question. Acknowledge receipt of the request for disclosure of records and offer the Claimant the opportunity to seek an apology and/or an explanation rather than compensation. Identify any incident reports completed in connection with the Claimant s treatment and/or formal complaint documentation to assist with the investigation. Identify and liaise with the appropriate clinicians to establish a preliminary position on the allegations made in respect of negligence and causation. Disclose copy records and x-rays within 40 days of receipt of request and other disclosure requests as necessary. Obtain views of any other staff involved and undertake investigation as required. Prepare preliminary analysis report on facts, liability, causation and quantum and report claim to the NHSLA when appropriate and in accordance with the CNST Reporting Guidelines. Further conduct of claim as arranged in association with the NHSLA. Liaise with relevant staff, regarding any admission or denial of liability and ongoing procedural steps. Ensure claims are reviewed for risk management lessons. When the claim is closed, inform staff involved of the outcome. 7

10 Act in accordance with the timescales specified at 5.4 above. 5.8 Procedure for the management of Liabilities to Third Parties Scheme (LTPS) claims Employers liability and Public liability claims relate to non clinical incidents where an employee of the Trust or a contractor or visitor to Trust premises suffers an injury or other loss caused by alleged negligence and/or breach of contract by the Trust. This Policy is based on the understanding that the Trust ensures that by employing specialist lawyers in its Legal Services Department claims will be managed in accordance with the Liabilities to Third Parties Scheme Membership Rules and the LTPS Claims Reporting Guidelines (dated October 2012). The first indication of a claim for compensation is usually on receipt of a Letter of Claim which makes the matter automatically reportable to the NHSLA. The Letter of Claim will contain a summary of the facts on which the claim is based and preliminary details of the injury and loss sustained. Such letter requires urgent attention as it starts the legal process and a strict timetable needs to be followed. No acknowledgment or response to the Letter of Claim should be given. This letter must be referred immediately to the Trust s Legal Services Department On receipt of a Letter of Claim, the Legal Services Department will deal with the claim and notify the NHSLA in accordance with the LTPS Reporting Guidelines. NHSLA authorisation is required before admissions are made and monetary compensation offered. The Legal Services Department will liaise with the NHSLA with regards to the ongoing management and investigation of the claim. There is a policy excess in respect of employers liability and public liability claims as follows:- Employers Liabilities Scheme 10,000 Public Liabilities Scheme 5,000 As the Trust occupies a Private Finance Initiative (PFI) Hospital many of the facilities and services which may cause injury to employees or members of the public may not have been provided by the Trust but by Octagon Healthcare and its contractors. Under the PFI agreement Octagon is also required to maintain insurance, of which the Trust may be a beneficiary. The Legal Services Department will refer relevant cases onto Octagon accordingly. 6 Linking Claims Management with Incident and Complaints Management On receipt of all claims, the Legal Services Department will cross check the Datix information management system to ascertain whether the claim has been the subject of a reported incident or a previous complaint. This crosscheck shall be documented on the claims file and relevant copies of documents relating to the complaint or incident obtained. Ongoing linkage between claims, incidents and complaints shall be ensured through the operation of the Clinical Incidents, Claims and Complaints Review Committee, as detailed in this Policy and the Terms of Reference of that Committee. 7 Communication with relevant stakeholders The lawyers in the Trust s Legal Services Department are responsible for day to day communication on claims with the NHSLA, Claimants (where appropriate), solicitors, relevant staff and the Coroner as indicated by the circumstances of the individual case 8

11 and in accordance with their professional judgement. The Legal Services Department will act as the point of contact for all parties. The lawyers in the Legal Services Department will communicate with relevant staff in relation to claims as detailed at Section 8 below. When corresponding with the NHSLA, the Trust will utilise the secure DTS whenever possible to ensure confidentiality. Before entering into any communication with Third Parties in relation to claims concerning the Trust, staff should consult with the Legal Services Department. 8 Investigation and Root Cause Analysis The Trust has considered whether it should utilise different levels of investigation appropriate to the apparent severity of the events in question in individual claims. Such an approach would pose the risk of judging one person's suffering or injury as more severe or 'important' than another's and some events as more meritorious of investigation than others. To avoid such invidious judgements, each case will be investigated formally under the supervision of one of the lawyers in the Legal Services Department as detailed below. The initial investigation of claims will be coordinated by the nominated Legal Services Department Investigating Manager (see Section 4.6 above). The precise form, content and sequence of the investigation will be determined by the professional judgement of the Investigating Manager taking into account the factual circumstances of the individual case and the allegations made. The investigation is however likely to involve: review of the original medical records; consideration of other relevant documents eg policies, guidelines, personnel files, maintenance records etc as indicated; identification of relevant staff and obtaining factual statements; request for internal clinical advice as appropriate and indicated. In relation to clinical negligence claims, the views of a relevant senior clinician within the Trust will be sought by the Investigating Manager. Typically this will be the treating consultant. As necessary, at the discretion of the Investigating Manager, the opinion of a second or more senior clinician may be sought, for example from the Clinical Director. In exceptional cases the Trust may commission external expert opinion, at the discretion of the Head of Legal Services usually following discussion with the Medical Director and/or Director of Nursing as may be indicated by the circumstances of the case. Circumstances in which such external opinion may be commissioned would include if there is dispute or uncertainty over the opinion obtained internally or if particular specialist expertise is needed. When the claims procedure is triggered an initial assessment will be carried out which will include an evaluation of: the strength of the actual or proposed claim and any defence; the identity of factual witnesses; possible alternative methods of achieving resolution of the dispute. This assessment will involve an initial action plan for the handling of the claim with anticipated timescales. The lawyers in the Legal Services Department are in charge of investigating the claim. It is essential that they establish and maintain contact with relevant current and former staff, giving advice and support as necessary. Comments, and if appropriate statements, will be obtained on the events in question. For more recent incidents, the 9

12 lawyers will have the benefit of the detail contained in any adverse incident report. It is the responsibility of the Investigating Manager to provide support and advice for all staff involved in the litigation process but it is acknowledged that particular support may be required when preparing Witness Statements, attending Conferences with Counsel or for Court appearances. As a general principle, those staff who are the subject of allegations in a claim should receive regular updates during the lifetime of the claim at least on an annual basis. It is however recognised that this may cause rather than alleviate any concern experienced by staff and at the discretion of the relevant Investigating Manager less frequent contact may be appropriate. As part of the investigation, the lawyers in the Legal Services Department will consider whether any third party (eg. Octagon/Serco) may be liable for the claim particularly as the Trust occupies a PFI (Private Finance Initiative) building. They will identify and arrange for the preservation of relevant records and other documents or equipment. Once the claim becomes reportable to the NHSLA, the lawyers in the Legal Services Department will liaise with the NHSLA and its advisors until conclusion of the case. They will obtain expert clinical advice both within and outside the Trust as appropriate or directed by the NHSLA. Throughout the life of the claim, the lawyers will systematically review the case file to ensure that claims are progressed and brought to a conclusion as soon as possible. Such reviews should take place at a frequency of no less often than every 6 months and Action Plans should be updated as the claim progresses. Support for Staff, will be available in accordance with section 5.6 above. Further guidance on liaison with Trust staff and the conduct of interviews is contained in the separate Trust Policy on Investigation of Complaints, Claims and Incidents to Enable Improvement and Learning. The process for ensuring that appropriate lessons are learnt from claims is detailed at Section 10 below. 9 Claims Data Collection and Analysis Information concerning claims will be collected on an ongoing basis by staff of the Legal Services Department utilising the Datix Claims Database. This information will be collated and analysed and reported to the Clinical Incidents, Claims and Complaints Review Committee (CICCRC). This analysis should be both qualitative and quantitative in nature, and discuss any trends that have been identified within claims. Reports should expand from the purely statistical and should document trends/themes/causal factors and any subsequent changes in practice. This information will then be disseminated in accordance with the CICCRC Terms of Reference. 9.1 Claims Reports to Board and Relevant Committee(s) Reports relevant to the support for staff involved in claims (as per 5.6) shall be made to the Workforce Sub-Board. Information and analysis concerning claims received by the Trust will be reported by the Head of Legal Services to the Clinical Incidents, Claims and Complaints Review Committee at meetings held in accordance with its Terms of Reference. Following each meeting of the CICCRC its Chairman will provide a copy of the Committee s agenda and action points arising to the Clinical Safety Sub-board. 10 Learning from Experience Links between claims, complaints and incidents are highlighted in sections 6 and 9 above. In addition, the process for ensuring that lessons are learnt from claims is summarised at Appendix A. In particular, the relevant department or clinician within 10

13 the Trust will be asked to identify whether any lessons may be learnt in light of allegations made in the claims process and expert reports received. The lawyers in the Legal Services Department have a role in contributing to risk management and ensuring that appropriate lessons are learned for the benefit and safety of future patients and staff. They will assist in preparing reports concerning claims as required by the Trust s clinical governance arrangements. The lawyers will ensure that any information emerging during claims investigation and outcome is shared with staff involved and any risk management recommendations are shared with the appropriate parties. As part of their role as investigating managers, the lawyers will participate in risk management activities by contributing to education programmes for the benefit of front line staff and students of the Trust s education partners. Where specific risk management recommendations arise from claims these will be reported to the Clinical Incidents, Claims and Complaints Review Committee to demonstrate or oversee implementation as appropriate. Where detailed action plans are required, these will be incorporated in to the relevant departmental clinical governance processes to oversee: internal and external sharing of lessons learnt; local implementation of action plans; identification of organisational or clinical risks which should be added to the risk registers. 11 Equality Impact Assessment An Equality Impact Assessment has been carried out by the Head of Legal Services and this document is not considered to be discriminatory. No areas of risk were identified that required attention. 12 Monitoring Compliance with this Policy The process for monitoring compliance with this Policy is detailed in the Monitoring Framework set out at Appendix D. 13 References Ministry of Justice. (2009). Civil Procedure Rules. Ministry of Justice. Available at: National Reporting and Learning Service National Patient Safety Agency (NPSA). (2009). Being open: Saying sorry when things go wrong. London: NPSA. Available at: National Reporting and Learning Service National Patient Safety Agency (NPSA). (2009). Being open: Supporting information. NPSA. Available at: National Reporting and Learning Service National Patient Safety Agency (NPSA). (2009). Patient Safety Alert. Being Open: Communicating with patients, their families and carers following a patient safety incident. NPSA. Available at: NHS Litigation Authority (NHSLA) (2009) Apologies and Explanations Circular. Available at NHS Litigation Authority (NHSLA). (2003). Clinical negligence litigation - a very brief guide for clinicians. London: NHSLA. Available at: 11

14 NHS Litigation Authority (NHSLA) (1999) RPST Membership Rules. Available at NHS Litigation Authority (NHSLA). (2006). NHSLA Disclosure List for LTPS claims. Available at: NHS Litigation Authority (NHSLA). (2012). LTPS claims reporting guidelines. (October 2012) London: NHSLA. Available at NHS Litigation Authority (NHSLA). (2013 [2008] [2001]). Clinical Negligence Scheme for Trusts - Membership Rules (Revised 1 April 2013). Available at: NHS Litigation Authority (NHSLA). (2008). Clinical Negligence Reporting Guidelines (Fifth edition). (October 2008) Available at: 14 Associated Documentation In addition to the references given above, relevant information and guidance is available in the following Trust policies which may be located on the Trust s intranet site: Complaints Policy and Handling Guidelines; Clinical Incidents, Complaints and Claims Review Committee (CICCRC) Terms of Reference; Trust Policy on Being Open; Monthly Clinical Quality and Safety Report circulated to all Trust staff via the Team Brief; Incident Reporting Policy; Procedure for Property Expenses Claims managed by the Finance Department 15 General 15.1 Summary of Development and Consultation Process This updated Policy has been based on earlier versions and the NHSLA recommended template. It has been produced following discussion with the Legal Services Department and Risk Manager and review by the Clinical Incidents, Complaints and Claims Review Committee. This Policy will be approved and ratified by the Executive Board Distribution and Dissemination of Policy Responsibility for placing this Policy on the Trust Intranet will rest with the Head of Legal Services. The Head of Legal Services will ensure that any appropriate training and supervision is provided to staff of the Legal Services Department to ensure implementation of this Policy. Trust staff will be notified of the reviewed policy via the Communications circular system. 12

15 APPENDIX A Learning from Claims Trust Notified of Claim Either directly to Legal Services Department or referred to Legal Services Department from elsewhere in Trust without delay Allocation to Investigating Manager Head of Legal Services allocates claim to one of the lawyers within Legal Services Department to have conduct of claim and act as Investigating Manager Cross Check for other Relevant Information Legal Service staff cross check against Datix system for previous relevant incident report, complaint or claim Investigating Manager Coordinates Fact Finding Review of medical records and associated documentation Request for comments from relevant Trust staff Consideration of relevant guidelines and policies Risk Management Assessment (1) Investigating Manager carries out initial risk management assessment based on preliminary analysis of claim, comments received and results of any previous investigations (eg through complaints/incidents procedure). New Claims reported quarterly to Clinical Incidents, Claims and Complaints Review Committee (CICCRC) Claim forms part of aggregated analysis of complaints, claims and incidents with papers for CICCRC posted on Trust Intranet Risk Management Assessment (2) Further assessment as part of ongoing claims management process through receipt of expert reports and liaison with NHSLA and panel solicitors Before file closure Investigating Manager to document either that following investigation no risk management actions should result or that senior Trust staff have confirmed that appropriate actions have been taken 13

16 APPENDIX B Statement Writing 1. Introduction The purpose of these guidelines is to assist individuals in the preparation of written Statements. A Statement may be required as part of the investigation into an incident, complaint or claim, or to assist H M Coroner with the Inquest into the events surrounding the death of a patient. Statements can serve to record facts and recollection of events as soon as possible after the matters in question. Memories inevitably fade over time and having a Statement prepared will enable any subsequent enquiries to be responded to without delay. In relation to any matter that is subject to an ongoing claim, or a matter likely to lead to a claim, staff are encouraged to seek advice from Legal Services staff before completion/signing. CAUTION in some circumstances others may be entitled to obtain a copy of your Statement - See section 5.6 of this Policy with respect to documents that may be confidential on grounds of legal privilege. 2. Presentation of a Statement The Statement should be typed or written in black ink onto Trust headed A4 paper or on the Trust Statement sheet. The Statement should be clearly headed to indicate to whom or which incident the Statement refers, detailing names, dates of birth/death, hospital number, dates and location of any specific incident. The Statement should state your name, current designation, qualifications and where you are based. It should confirm the dates, day of the week, time and location of the events in question. If appropriate, it should be stated clearly that the Statement is being written in anticipation of legal proceedings or to be used in seeking legal advice. The pages of the Statement must be numbered, and signed and dated and each paragraph should be numbered consecutively. If you must use abbreviations, ensure the full terminology is given the first time it is used followed by the abbreviation in brackets. It is permissible to use technical terms but you should try and explain these in lay terms wherever possible. Avoid jargon and clichés. 3. Statement Content The Statement should follow a chronological order and should be an account of your involvement with the patient - use it to tell your story. The evidence in your Statement should be your personal knowledge and the statement should be in the first person singular (eg "I saw "). If you include information from other sources (eg the medical records) or something that someone told you, this should be stated. 14

17 The Statement should be factual, and must not contain expressions of personal opinion about matters outside your field of expertise. It must not contain hostile, offensive or unnecessary defensive comments. Do not make assumptions, criticise/blame others or use unconfirmed reports. The Statement must be as accurate as possible with regard to dates, times, dosages of drugs etc. Do not record facts unless you are sure of them. Make reference to policies, procedures and guidelines in use at the time (where appropriate) and if possible attach a copy of the item referred to in your Statement. Explain any reasons for deviating from the guidelines/policy. 4. Consider the Following When were you involved in the relevant events- at the beginning or part way through? What did you actually see and hear? What exactly did you do? If necessary, explain why you did this (ie what were your thought processes?) Did you give information to patient or relatives? If so what? What was documented and where? 5. At the End Your Statement should conclude with the phrase "I believe that the facts stated in this Statement are true". 6. Advice (See Appendix C for useful contact numbers) Ask someone you trust to read your Statement in draft. Further advice can be sought from a number of sources including: Your Department Manager/Head of Nursing; The Legal Services Department; Your Clinical Director; Your Clinical Supervisor/Tutor; Your Trade Union or Professional Organisation; 7. Signature Once you have taken advice, sign and date your Statement at the end and remember to keep a copy in a safe place. 15

18 EXAMPLE DRAFT STATEMENT Written in anticipation of legal proceedings or for the purposes of obtaining legal advice STATEMENT OF [INSERT NAME AND QUALIFICATIONS] [INSERT JOB TITLE] REGARDING [INSERT NAME OF PATIENT [DATE OF BIRTH] [DATE OF DEATH] I, DR [insert name and job title] of the Norfolk & Norwich University Hospitals NHS Foundation Trust, Colney Lane, Norwich, NR4 7UY will say as follows: 1 I make this Statement with respect to the care of [insert patient name] in [insert date]. I do so based on my personal recollection of this case and from information contained in the hospital medical records. 2 [Insert your Statement using numbered paragraphs] I believe that the facts stated in this Witness Statement are true. SIGNED [insert name and qualifications] [insert job title] DATED 16

19 APPENDIX C Useful Contacts Legal Advice Legal advice is available from the lawyers in the Trust s Legal Services Department. Out of hours legal advice can be obtained via the Senior Manager/Director on-call or in an emergency from one of the solicitors in the Legal Services Department via switchboard namely: Mrs Sonia Appleton, Solicitor Ext: 3064 Miss Alison Brockhurst, Solicitor Ext: 3606 Mr Paul Bunn, Solicitor Ext: 3602 Miss Caroline Curtis, Solicitor Ext: 3391 Mr John Paul Garside, Solicitor and Head of Legal Services Ext: 3475 Miss Jan Perkins, Solicitor Ext: 5687 Administration/Reception Ext 5671 or Ext 2445 ( advice.legal@nnuh.nhs.uk) 17

20 APPENDIX D Monitoring Framework Document Name: Claims Management Policy Document Owner: Head of Legal Services Element to be monitored (For NHSLA documents this must include all Level 1 minimum requirements) Lead Responsible for monitoring Monitoring Tool / Method of monitoring Frequency of monitoring Lead Responsible for developing action plan & acting on recommendations Reporting arrangements (Committee or group where monitoring results and action plan progress are reported to) Sharing and disseminating lessons learned & recommended changes in practice as a result of monitoring compliance with this document Duties Action to be taken, including timescales Communication with relevant stakeholders Head of Legal Services Head of Legal Services Head of Legal Services (i) Programme of audits as agreed with CICCRC (ii) Staff questionnaire Audits (i) Staff questionnaire (ii) Audit (i) (ii) annually annually Annually Annually Head of Legal Services Head of Legal Services Head of Legal Services CICCRC with upward reports to Clinical Governance Committee CICCRC with upward reports to Clinical Governance Committee CICCRC with upward reports to Clinical Governance Committee The Lead responsible for developing the action plans will disseminate lessons learned via the most appropriate committee e.g. Clinical Effectiveness; Clinical Governance, Patient Safety and relevant Support for staff involved in claims. Head of Legal Services Audit Annually Head of Legal Services Workforce Sub- Board This table should be incorporated into the policy / document in the Monitoring and review section or referenced in this section and attached to the document as an Appendix. 19