Guidelines for Managers on receipt of a request for financial compensation from a Complainant (Remedy)

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1 Guidelines for Managers on receipt of a request for financial compensation from a Complainant (Remedy) Amendments Date Page(s) Comments Approved by Aug 2011 General review and update. Changes Head of Patient made in reference to titles and Experience structure. Nov 201 Page Adding of Principles of Remedy Director of & Information Ratified by: Date: August 2011 Trust Executive Committee Review date: 2016 Responsible Executive Director: Target Audience: Impact Assessment Carried Out by: Authors: Director of & Information All Staff Head of Patient Experience Head of Accreditation & Regulation Claims and Coroners Manager 201 Page 1 of 11

2 ASHFORD & ST PETER S HOSPITALS NHS FOUNDATION TRUST CONTENT Page 1 Introduction Remedy.. Financial Compensation.5 4 Process Recording of Financial Payments..6 6 Archiving Arrangements 6 7 Dissemination and Implementation..6 8 Process for monitoring compliance with the effectiveness of policy 6 9 References & Bibliography..7 Appendix 1 Appendix 2 Appendix Form of Release.8 Covering letter 9 Equality Impact Assessment Page 2 of 11

3 ASHFORD & ST PETER S HOSPITALS NHS FOUNDATION TRUST Guidelines for Managers on receipt of a request for financial compensation from a Complainant (Remedy) See also: Complaints Procedure Handling of Clinical Negligence Claims Non Clinical Claims 1. INTRODUCTION The Trust is committed to providing high standards of care but also recognises that the service provided can fall below that the level which would normally be expected. When advising of and pursuing a complaint against the Trust, the complainant may request financial compensation. This paper aims to set out the Trust s approach to considering such requests. Financial payments will only be agreed and made following careful consideration of the individual circumstances, ensuring that there is proper protection of public funds and that any remedial action does not exceed the Trust s legal powers. (Please see HM Treasury Managing Public Money / Department of Health NHS Manual). 2. REMEDY The Trust is committed to a full, open and honest investigation of complaints relating to the services it provides. (Please see Trust Complaints Procedure) Where it is found there has been maladministration or poor service the Trust will take steps to provide an appropriate and proportionate remedy. An appropriate range of financial and non-financial remedies may include one or all of the following: An apology and explanation. Remedial action, which may include reviewing or changing a decision on the service given to an individual complainant; revising published material; revising procedures to prevent the same thing happening again; training or supervising staff or any combination of these. Financial compensation. When considering remedy, the Trust will take into account any way in which the complainant may have contributed to, or prolonged, the problem. Each case will be considered on its merits. 201 Page of 11

4 The Principles for Remedy (2009), as set out by the Parliamentary and Health Services Ombudsman. 1. Getting it right: Quickly acknowledging and putting right cases of maladministration or poor service that have led to injustice or hardship Considering all relevant factors when deciding the appropriate remedy, ensuring fairness for the complainant and, where appropriate, for others who have suffered injustice or hardship as a result of the same maladministration or poor service. 2. Being customer focused Apologising for and explaining the maladministration or poor service. Understanding and managing people s expectations and needs. Dealing with people professionally and sensitively. Providing remedies that take account of people s individual circumstances.. Being open and accountable Being open and clear about how The Trust decide remedies. Operating a proper system of accountability and delegation in providing remedies. Keeping a clear record of what The Trust has decided on remedies and why. 4. Acting fairly and proportionately Offering remedies that are fair and proportionate to the complainant s injustice or hardship. Providing remedies to others who have suffered injustice or hardship as a result of the same maladministration or poor service, where appropriate. Treating people without bias, unlawful discrimination or prejudice. 5. Putting things right If possible, returning the complainant and, where appropriate, others who have suffered similar injustice or hardship, to the position they would have been in if the maladministration or poor service had not occurred. If that is not possible, compensating the complainant and such others appropriately. Considering fully and seriously all forms of remedy (such as an apology, an explanation, remedial action, or financial compensation). Providing the appropriate remedy in each case. 6. Seeking continuous improvement Using the lessons learned from complaints to ensure that maladministration or poor service is not repeated. Recording and using information on the outcome of complaints to improve services. 201 Page 4 of 11

5 . FINANCIAL COMPENSATION Requests for financial compensation following alleged personal injury or medical negligence must be referred to the Claims and Coroners Manager and investigated and reported in accordance with the requirements of the NHS Litigation Authority who have financial responsibility for clinical and some non clinical negligence liabilities. (For more information, please see the policy for Handling of Clinical Negligence Claims and the Management of Non Clinical Claims). For the sake of clarity, financial compensation with respect to Personal Injury and Medical Negligence is not covered under this guidance. Where financial remedy is identified as the right approach to maladministration or service failure it will be fair, reasonable and proportionate to the loss suffered by the complainant. Financial compensation will not allow the complainant to gain financial advantage compared to what would have happened with no service failure and will be made in accordance with NHS Manual Guidance /HM Treasury s Managing Public Money. Such payments may arise: 1 As a result of a recommendation by the Parliamentary and Health Service Ombudsman (PHSO). 2 In cases (not involving the PHSO), where the Trust considers the effect of maladministration or service failure may justify payment. (Note: Examples of maladministration are detailed in the NHS Manual / HM Treasury s Managing Public Money. 4. PROCESS In the event of maladministration or service failure and a request for compensation, Divisional Complaints Lead will discuss the request with the Claims and Coroners Manager, the relevant Associate Director of Operations and Divisional Director with specific reference to the NHS Manual Guidance. If required, legal advice will be obtained. Such advice will be authorised by the Claims and Coroners Manager following discussion with the Divisional Director and Associate Director of Operations. The cost of any advice will be met from the Division s budget. In the event that the request for financial compensation is considered: reasonable, fair and proportionate; does not allow the complainant to gain financial advantage; is a direct result of maladministration or service failure; and meets the criteria as set out in the NHS Manual / HM Treasury s Managing Public Money The Associate Director of Operations will agree the amount of compensation to be offered and on receipt of evidence of expenditure (i.e. receipts) will authorise the payment from the Division s budget. (Note: Parameters for decision making will be limited within the Chief Executive s detailed Scheme of Delegation). 201 Page 5 of 11

6 The complainant will be advised that the financial payment is in full and final settlement of their claim and will be asked to sign a Form of Release to this effect. (Please see Appendix One Form of Release and Appendix Two Example Covering letter). The Complainant will be advised that they can seek legal advice before accepting the Trust s offer of financial payment. On receipt of the signed Form of Release the payment will be made to the complainant. If subsequent to the payment of financial compensation information is received by the Trust that the basis of the claim was not valid then the case may be referred to the Trust s Local Counter Fraud Officer for investigation. 5. RECORDING OF FINANCIAL PAYMENTS A record of the agreed financial payment will be kept on the relevant complaint file. A summary of financial payments by Division will be reported quarterly to the Trust s Complaints Monitoring Group who will monitor trends in payments and ensure, where appropriate, that action has been taken to reduce the risk of further similar complaints and payments. A summary of financial payments by Division will be included in the Trust s Annual Complaints Report. The Director of and Information will ensure a summary of any financial payments made as a result of complaints are recorded in the Trust s Losses and Special Payments Register. A summary of this Register will be subject to audit and be presented to the Trust s Audit Committee in each financial year. Monitor requires a summary of the Trust s Losses and Special Payments Register to be submitted as part of the Trust s Annual Accounts Summarisation Schedules. On the basis of this the Department of Health may ask for documentation on sample cases. Anonymised complaints documentation will be made available as requested. 6. ARCHIVING ARRANGEMENTS Expired copies of this policy are held by the Head of Accreditation and Regulation. 7. DISSEMINATION AND IMPLEMENTATION The guidance will be circulated through ASPIRE and made available on the Trust intranet and internet sites. 8. PROCESS FOR MONITORING COMPLIANCE WITH THE EFFECTIVENESS OF POLICY This guideline will be followed in every case where a request for financial compensation has been received via the complaints process. The process will be overseen and monitored by Divisional Complaints Lead who will ensure that those staff involved in recommending and agreeing financial compensation have fully read and understand the guidance and are advised that any recommendation made for financial compensation is in line with this guidance. 201 Page 6 of 11

7 9. REFERENCES & BIBLIOGRAPHY Statutory Instrument (2009) The Local Authority Social Services and National Health Service Complaints (England) Regulations London HM Statutory Office. NHS Litigation Authority (201) Clinical Negligence Scheme for Trusts (CNST): Clinical Risk Management Standards. London: NHS Litigation Authority Ombudsman s Principles, (2009) Parliamentary and Health Service Ombudsman. NHS Constitution (2008) Department of Health. Apologies and explanations NHS Litigation Authority, Department of Health: Manual (2011). HM Treasury s Managing Public Money (201). https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/21212/managing_pu blic_money_aa_v2_-_chapters_annex_web.pdf WEBSITES NHS Litigation Authority Health Service Ombudsman 201 Page 7 of 11

8 APPENDIX 1 Form of Release in respect of Financial Compensation Payment made by Ashford & St Peters Hospitals NHS Foundation Trust I, [complainants name], of [complainants address] undertake that: By accepting the sum of xxx from Ashford & St Peters Hospitals NHS Trust in full and final satisfaction of any claim arising from [insert details of complaint] at the Trust on [insert date] (which is the subject of a letter of complaint dated xxxxx) I will release the Trust from any liability it has to me; and I will not sue, claim or commence proceedings against the Trust in relation to the accident [insert details as above] on [insert date]. I also understand that if I make a false claim on the Trust that this will result in the case being referred to the Trust s Local Counter Fraud Officer and may result in civil recovery and /or criminal proceedings. Signed Print Name Date :... : 201 Page 8 of 11

9 APPENDIX 2 Example Covering Letter Dear I write further to your letter of complaint of [insert date] and apologise on behalf of the Trust for [insert details]. Following our investigation, I now write to confirm that the Trust is prepared to make a financial payment to you in the sum of xxx to cover [insert details]. Your acceptance of this offer is conditional upon you signing the enclosed Form of Release which confirms that you will not subsequently commence legal proceedings against the Trust in relation to this particular matter. This release is standard when financial payments are made. The making of this offer does not preclude you from taking legal action but the acceptance of this offer does. You may therefore wish to consider taking independent legal advice before signing this release and accepting the Trust s offer. If you do wish to accept the Trust s offer please return the signed release to me and I will then arrange for a cheque in the sum of xxx to be forwarded to you. I do wish you well in the future. Yours sincerely Name Chief Executive 201 Page 9 of 11

10 APPENDIX Equality Impact Assessment Summary Guidelines for Managers on receipt of a request for financial compensation from a Complainant (Remedy) Name: Head of Patient Experience Background Description of the aims of the policy Context in which the policy operates Who was involved in the Equality Impact Assessment When advising of, and pursuing a complaint against the Trust, a person making a formal complaint may request financial compensation. The guideline aims to set out the Trust s approach to considering such requests. Financial payments will only be agreed and made following careful consideration of the individual circumstances, ensuring that there is proper protection of public funds and that any remedial action does not exceed the Trust s legal powers (Please see Department of Health NHS Manual). This guideline is intended for use in conjunction with the existing Trust Complaints Procedure, which has been fully impact assessed. It is to be used by those Trust staff involved in agreeing and administering financial compensation following the investigation of a complaint and its users will include Senior Trust Managers, Clinical Directors, Executive Directors, Head of Customer Affairs and the Complaints Manager. It has been developed to reflect the new legislation upon complaints handling The Local Authority Social Services and National Health Service Complaints (England) Regulations (2009) and the Parliamentary and Health Service Ombudsman Principles, (PHSO 2009) best practice guidance. Those involved in the Equality Impact Assessment were: Head of Customer Affairs, Complaints Manager, Director of, Trust Solicitors, Business Centre Manager for Theatres, Anaesthetics and Critical Care. Methodology A brief account of how the likely effects of the policy was assessed (to include race and ethnic origin, disability, gender, culture, religion or belief, sexual orientation, age) The data sources and any other information used The consultation that was carried out (who, why and how?) The policy is intended for internal use only as a guideline to ensure the appropriate formal process is followed when agreeing financial compensation payments. It sets out an approach for the review of each request on its individual merits and in doing so seeks to ensure no one person or group are discriminated against. Key Findings Describe the results of the assessment Identify if there is adverse or a potentially adverse impacts for any equalities groups

11 There are no adverse or potentially adverse impacts for any equalities groups. Conclusion Provide a summary of the overall conclusions This policy will not have any impact with regards to race and ethnic origin, disability, gender, culture, religion or belief, sexual orientation or age. Recommendations State recommended changes to the proposed policy as a result of the impact assessment Where it has not been possible to amend the policy, provide the detail of any actions that have been identified Describe the plans for reviewing the assessment None. 201 Page 11 of 11

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