Quality and Performance Committee. Implementation date February Review Date February Version Number V02.1

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1 Document Title Claims Management Policy Reference Number Lead Officer NTW(O)06 Executive Director of Nursing and Operations Author(s) (name and designation) Sue Sadler-Bell Incident & Claims Manager Ratified by Quality and Performance Committee Date ratified 3 rd February 2009 Implementation date February 2009 Date by which policy to be embedded February 2010 Review Date February 2012 Version Number V02.1 Date Version Reason Change Control Feb Review policy Jun 10 V02.1 Updated with FT Status This supercedes the following document: Reference Number NTW(O)06 V02 Title Management of Claims

2 NTW (O)06 Claims Management Policy Section Contents Page No: 1 Introduction 1 2 Purpose 1 3 Duties 2 4 Indemnity 3 5 Reporting 3 6 Media Interest 3 7 Remedial Action 4 8 Solicitors Requests for Report 4 9 Preparation of Statements 5 10 Criminal injuries compensation authority (CICA) 5 Temporary Injury Allowance (TIA) Permanent Injury Allowance (PIA) 11 Third party claims 6 12 Review 7 13 Consultation and communication with 7 stakeholders 14 Approval of document 7 15 Definitions of terms used 7 16 Policy administrative process 9 17 Equality impact assessment 9 18 Training 9 19 Embedding 9 20 Monitoring and compliance 9 21 Standard/Key performance indicators 9 22 Fair Blame 9 23 Associated documentation References 10 APPENDICES attached to policy Appendix A Equality and Diversity Impact Assessment 11 Appendix B Training Checklist and Needs Analysis 14 Appendix C Audit and Monitoring tool 16 Appendix D Policy notification record sheet 17 Appendix 1 Appendix 2 Appendix 3 Appendix 4 Appendix 5 Appendix 6 Appendix 7 APPENDICES listed separate to policy What to do when a potential claim is received List of Contact Details Guidelines on completing statements for claims Maximum Payments Considered for Ex-Gratia Payments Ex-Gratia Claim Form Offer of Ex-Gratia Payment Opticians Form NTW(O)06 Claims Policy V02.1

3 1 INTRODUCTION 1.1 Northumberland, Tyne & Wear NHS Foundation Trust (the Trust) provides a wide range of health care services in hospital, community, home and other care settings. 1.2 The Trust policy for the handling of claims has been drawn up to clarify the procedures to be followed in the event of a claim by or against the Trust and forms part of the Trust s risk management procedures. (Appendix 1) 1.3 The policy covers the management of all claims against the Trust, from patients, staff or third parties and the management of property expenses claims made by the Trust. 1.4 There are several types of claim that could be made against the Trust: Clinical Negligence Employers Liability Public Liability Property and Material Damage Ex-Gratia Claims Employment Law Vehicle Accidents Miscellaneous The Trust has authorised personnel to deal with each category of claim. For further details please see Appendix 2. 2 PURPOSE 2.1 The Trust recognises and accepts its responsibility to provide a safe and healthy workplace and a safe environment for its employees, patients and visitors. 2.2 The Trust recognises the potential for claims to be made against it alleging clinical negligence or personal injury and accepts that these need to be handled sensitively and speedily, to cause the minimum of stress to those involved. 2.3 The Trust undertakes to deal with claims as quickly as practicably possible in a cost effective manner. 2.4 The Trust operates an open and honest policy and therefore will endeavour to disclose accurate information, in accordance with the requirements of Clinical Governance, Woolf pre-action protocols and other relevant legislation. 2.5 The Trust operates a `lessons learnt strategy and any claim which highlights trends and risk issues will be brought to the attention of the Trust Board and other Trust safety groups by the appropriate authorised person. 1

4 2.6 The Trust will support and provide advice to all staff who are involved in the litigation process and keep them updated throughout the process. 2.7 All information and documentation relating to the claim and accrued in the course of the claim will be treated as confidential and not relayed to a third party. In the case of patients, disclosure of records requires the specific written consent of the patient or person nominated on behalf of a patient. The Data Protection Act (1998) legislation will be adhered to in relation to patients who are living. The Access to Health Records Act (1990) for patients who are deceased and children. 2.8 All claims will be dealt with in the Trust s name, rather than an individual member. Any member of staff receiving a letter of claim made against him or her personally and relating to an incident arising out of his or her employment should contact any of the authorised personnel immediately. (Appendix 2). 3 DUTIES Chief Executive 3.1 The Chief Executive is the Board member with overall responsibility for the management and handling of claims, and will keep the Board informed of major developments in this area. Executive Director of Nursing and Operations 3.2 The Executive Director of Nursing and Operations is responsible for ensuring that detailed procedures are developed, agreed and implemented throughout the Trust, and are monitored as appropriate. Head of Safety 3.3 The Head of Safety is responsible to ensure that claims are appropriately managed in line with this policy and will oversee the appeals process. Incidents & Claims Manager 3.4 The Incidents and Claims Manager reports to the Head of Safety. The Incidents and Claims Manager is responsible for the day to day handling of clinical negligence, employers liability, public liability, property expenses, exgratia and other miscellaneous claims. Executive Director of Workforce and Organisational Development 3.5 The Executive Director of Workforce and Organisational Development is responsible for the day to day handling of employment law claims. 2

5 Operational Services Manager 3.6 The Operational Services Manager is responsible for the day to day handling of vehicle claims (excluding leased vehicles). Motor claims in relation to leased transport must be reported immediately to the leasing organisation. All Employees 3.7 All employees employed by the Trust are required to assist in the investigation of claims against the Trust when appropriate. This will include providing reports and statements when required to do so. The Trust will ensure that all staff involved, will be adequately supported throughout the process. 3.8 All employees shall be responsible for reporting incidents (in line with Trust procedures) to allow for early investigation and remedial action to be addressed should a claim be submitted at a later date. 3.9 The authorised personnel who handle claims within the Trust will ensure that when a claim is notified, external bodies who need to become involved will be contacted. This could include, the Strategic Health Authority, local Primary Care Trust s (PCTs), local and neighbouring NHS Trusts Trust staff are required to uphold patient confidentiality at all times, including where staff seek to bring any legal claim against the Trust. Patient information must not be disclosed without seeking managerial authority, which may also require referral to the Trust Incident & Claims Manager and/or Health Records Officer Any member of staff seeking external legal advice regarding a claim, should not copy and disclose any patient information to their legal advisors without Trust approval, including accident/incident reports where patient details are included. To do so is a breach of key data protection and confidentiality requirements, which all staff are under a legal obligation to uphold. Any member of staff disclosing such information without Trust approval could be liable for disciplinary action. The Incident & Claims personnel will delete any third party information from any accident/incident report which is submitted regarding the claim. 4 INDEMNITY 4.1 Indemnity (through the National Health Service Litigation Authority - NHSLA) covers the actions of staff in the course of their NHS employment. It also covers people in certain other categories whenever the NHS body owes a duty of care to the persons harmed, including for example, locums, medical academic staff with honorary contracts, students, those conducting clinical trials, charitable volunteers and people undergoing further professional education, training and examinations. This includes staff working on specified income generation projects. GPs or Dentists who are directly employed by the Health Authorities, e.g. as Public Health Doctors (including port medical officers and medical inspectors of immigrants at UK air/sea ports) are covered. 3

6 5 REPORTING 5.1 The Incidents and Claims Manager will ensure that a quarterly status report is presented to the Trust Patient Safety Committee (a sub-group of Quality and Performance Committee). The report will include up to date information on all claims. 5.2 The Patient Safety Committee is responsible for reviewing those cases potentially necessitating changes to current working and clinical practices and, where appropriate, for integrating clinical audit with those issues of clinical risk identified. This committee acts as the assurance group for the Quality and Performance Committee. 5.4 The Trust will ensure compliance with the administration and reporting requirements of the Clinical Negligence Scheme for Trusts (CNST), the Non- Clinical Risk Pooling Scheme (RPST) and the NHSLA and will provide appropriate data base information which will be developed and updated accordingly. 6 MEDIA INTEREST 6.1 At any stage a claim or potential claim may generate media interest. The Incidents and Claims Manager will work closely with the Communications Department on all such claims. 6.2 The Incidents and Claims Manager, following discussion with the Chief Executive/Director of Nursing, will agree with the Communications lead what, if any information can be given to the media. 6.3 The Communications lead will agree draft press statements with the Chief Executive/Director of Nursing. 6.4 Where court hearings are likely to generate media interest, the Incidents and Claims Manager will notify the Communications Department and NHSLA and draft statements will be prepared in readiness, immediately dates are notified. 7 REMEDIAL ACTION 7.1 There is a need to establish the underlying cause(s) of claims through thorough investigation, to ensure that the cause of adverse events are properly understood, lessons learned and appropriate measures put in place to prevent or minimise a reoccurrence. The root causes of adverse events may lie in the management and organisational systems. Root cause analysis sets out to establish where those systems may be dysfunctional to reduce future risk of harm. An analysis must take place on all claims and it is the responsibility of the Incidents and Claims Manager with the appropriate personnel, to identify the root causes which are to be recorded on to the risk management data base and the Corporate Risk Register. 4

7 7.3 The Incidents and Claims Manager will notify the Chief Executive/Medical Director/Director of Nursing and Divisional Directors of any serious allegations of clinical negligence, which may need to be acted upon immediately. 7.4 Responsibility for taking remedial action to prevent a recurrence of any incident, which has resulted in a claim against the Trust, lies with the Chief Executive, Clinical Directors and Divisional Directors. 7.5 When claims are settled, regardless of outcome, the Incidents and Claims Manager will provide a written (or verbal, if appropriate) report outlining the background to the claim, the settlement details and also the reasons for the precise outcome. This information will be relayed via the reporting procedures, at paragraph 6, so that further remedial measures can be considered and, if necessary, actioned. 7.6 Responsibility for monitoring that remedial action has been taken will be delegated to authorised personnel, who will produce regular reports for the Trust Board, Patient Safety and Quality and Performance Committees. 7.7 The Incidents and Claims Manager will notify the Head of Safety of any potential areas of risk highlighted by individual claims. 7.8 The Patient Safety Officers will be responsible for ensuring that any wider lessons learned as a result of claims against the Trust are disseminated throughout the Trust. 8 SOLICITORS REQUEST FOR REPORTS 8.1 From time to time solicitors may request reports that do not relate to claims against the Trust. 8.2 A Solicitor may approach a healthcare professional to provide a report about a patient or member of staff in one of two circumstances: Where there is a claim against the Trust Where there is a claim against a third party. 8.3 Requests for reports can relate to patients or about a member of staff if it is a member of staff who is making a claim. 8.4 If there is a claim against the Trust, a claimant s solicitor should not approach any healthcare professional/manager directly. All requests must be via the Incidents and Claims Manager. Any members of staff receiving a request for a report where there is a claim against the Trust must refer the request directly to the Incidents and Claims Manager. 8.5 If the claim is not against the Trust then a report can be requested directly from the relevant healthcare professional or manager. The request from the solicitors must include signed authorisation from the person who the report is about. The healthcare professional/manager may prepare the report but must 5

8 always be aware that the report could be used in subsequent court proceedings and will be disclosed to the claimant and other parties. The person writing the report should also confirm with the solicitor, in what capacity they are being asked to write the report and notify them of any charges prior to the report being produced. 8.6 If the report is requested for Court, the duty of the person preparing the report is to the Court and the contents of the report must be factual. The writer must be comfortable confirming the contents of the report under oath in the witness box if so required. 8.7 Guidance and support in preparing reports for solicitors can be obtained from the Incidents and Claims Manager. 9 PREPARATION OF STATEMENTS 9.1 With an increasing number of complex queries, complaints and claims it is becoming more common for staff to be asked to provide statements as a result of a complaint/claim/untoward incident. When writing a statement, it is important to remember that, although the majority of statements will go no further, your statement may be copied to the complainant or used as evidence in defending a legal claim. Please remember however, that the Trust indemnifies its entire staff and is responsible for any complaint or claim made. 9.2 Guidance on completion of statements is enclosed at Appendix CRIMINAL INJURIES COMPENSATION AUTHORITY (CICA) / TEMPORARY INJURY ALLOWANCE (TIA), PERMANENT INJURY ALLOWANCE (PIA) 10.1 Ward Managers are required to forward all CICA requests to the Incidents and Claims Manager who will ensure completion and link into any potential claim files CICA requests for reports from clinicians do not need to be forwarded to the Incident & Claims Department and can be dealt with by the individual clinician concerned The Incident & Claims Department will inform Human Resources personnel of all new employer liability claims in order that any staff receiving TIA or any other payments (other than their entitlement of salary) in order that this can be taken into account during a potential claim. Staff should be aware that any monies claimed from the Trust, may be reclaimable if they are receiving certain allowances as a result of an accident at work. 11 THIRD PARTY CLAIMS 11.1 The Trust receives requests from solicitors for payroll and human resource information when a member of staff is making a claim for personal injury against someone else other than the Trust. All such requests for information 6

9 should be forwarded to the Incident & Claims Department in order that they can arrange for any sickness pay to be reclaimed. Staff should be aware that any monies gained via an external claim, may be reclaimable by the Trust on settlement (if they have been receiving payment during time off due to an external claim). 12 REVIEW 12.1 This procedure will be reviewed on a regular basis in line with relevant National Health Service Litigation Authority (NHSLA) or other legal directives. 13 CONSULTATION AND COMMUNICATION WITH STAKEHOLDERS 13.1 The consultation of this policy has been carried out in line with Section 7 within the Trust s policy, NTW(O)01 Development and Management of Procedural Documents 14 APPROVAL AND REVIEW OF DOCUMENT 14.1 This document has been approved by the Quality and Performance Committee, which is a sub-group of the Trust Board and will be reviewed on a 3 yearly basis unless by exception, i.e. due to change in legislation or standards etc. 15 DEFINITIONS OF TERMS USED 15.1 The common law tort of negligence can give rise to an act for damages alleging the Trust has been guilty of a failure to take reasonable care of those who might foreseeably be affected by its acts or omissions. For negligence to be proved, it would have to be shown that the Trust owed a duty of care to the injured party, that the duty of care was breached, that injury resulted as a direct result of the breach and that loss was suffered as a result of injury. The Trust is vicariously liable for the acts or omissions of its employees who are acting in the course of their employment Clinical Negligence Claims are: A breach of duty of care by members of the health care professions employed by the NHS bodies or by others consequent on decisions or judgements made by members of those professions acting in their professional capacity in the course of employment, and which are admitted as negligent by the employer or are determined as such through the legal process Employers Liability claims are: Claims for damages made by an employee who has suffered bodily injury(ies) sustained whilst acting in the course of his or her employment and arising from the Trust s failure in its statutory duty to provide a safe place of work and operate a safe system of work Public Liability claims are Claims for damages made by a Third Party (e.g. patient, visitor) to whom the Trust owes a duty of care and who has suffered loss, damage or bodily injury(ies) (but not due to clinical treatment) as a result 7

10 of the Trust s breach of duty. These claims also extend to damages arising from defective goods and equipment produced and supplied by the Trust Property Expenses claims are: Claims for compensation made by the Trust for accidental loss damage or destruction of premises owned or occupied by the Trust including items of equipment owned by the Trust, together with any resulting consequential losses. These claims also include other property related risks Ex-Gratia claims are payments which a health body is not obliged to make or for which there is no statutory cover or legal liability. An example is a payment to compensate for financial loss resulting from an act or failure of the body or its servants which does not give rise to a legal liability or the payment of compensation claims or damages. Such payments must be clearly related to and arise from the services which the body is authorised or required to provide. Other examples are payments made to meet hardship caused to persons by official failure or delay, or special payments to avoid legal proceedings against the Government on grounds of official inadequacy Employment Claims are: claims by staff or former members of staff for breaches of employment law, e.g. unfair dismissal, discrimination Vehicle Claims are: Claims for accidents involving Trust vehicles Miscellaneous Claims can be: Directors and Officers: Claims for damages made by any person or organisation alleging wrongful acts by a Board Member or other Officer of the Trust where that person was acting in good faith and in the course of their employment. Professional Indemnity/Income Generation: Claims for compensation and costs and expenses arising from a breach of professional duty, errors and omissions, libel, slander, etc Personal Accident: Claims for accidental bodily injury resulting in death or permanent disability and arising out of an assault occasioned during the course of his or her employment by a person or animal Criminal Injuries: Claims for compensation made for bodily injury that was not as a result of negligence or whereby the perpetrator is unable to be held liable 8

11 16 POLICY ADMINISTRATIVE PROCESS 16.1 The development, consultation and dissemination of this policy have been undertaken in accordance with the Trust s policy, NTW(O)01 - Development and Management of Procedural Documents and in conjunction with the policy administration process It has been circulated within the Chief Executive weekly bulletin via a link to the Trust clinical and nursing policy bulletin and is available on the Trust Intranet site and also from policy administration Archiving of this policy will be in accordance with the Trust s policy, NTW(O)01 Development and Management of Procedural Documents. 17 EQUALITY AND DIVERSITY ASSESSMENT 17.1 In conjunction with the Trust s Equality and Diversity Officer this policy has undergone an Equality and Diversity Impact Assessment which has taken into account all human rights in relation to disability, ethnicity, age and gender. The Trust undertakes to improve the working experience of staff and to ensure everyone is treated in a fair and consistent manner. 18 TRAINING See Appendix B 19 EMBEDDING 19.1 This will be monitored by the Quality and Performance Committee during the review process. If at any stage there is an indication that the target date cannot be met, then the Quality and Performance Committee will consider the implementation of an action plan. 20 MONITORING AND COMPLIANCE See Appendix C. 21 STANDARDS / KEY PERFORMANCE INDICATORS NHSLA Risk Management Standards. NHSLA Claims data specific to Mental Health / Learning Disability Trusts. Performance Reporting on numbers of claims reported through regular claims report. 22 FAIR BLAME 22.1 The Trust is committed to developing an open learning culture. It has endorsed the view that, wherever possible, disciplinary action will not be taken against members of staff who report near misses and adverse incidents, 9

12 although there may be clearly defined occasions where disciplinary action will be taken. 23 ASSOCIATED DOCUMENTS NTW(O)01 - Development and Management of Procedural Documents NTW(O)05 Incident Policy and Practice Guidance Notes NTW(O)20 Health & Safety Policy and Practice Guidance Notes NTW(O)33 Risk Management Policy 24 REFERENCES Data Protection Act (1998) Access to Health Records Act (1990) 10

13 Equality and Diversity Impact Assessment Screening Tool Appendix A Names of Individuals involved in Date of Initial Review Date Service Area / Review Screening Directorate TG 16 Jan 2009 Jan 2012 Trustwide Policy or Service to be Assessed Describe the aims, objectives or purposes of the Policy or Service Is this a new or existing Policy or Service? New Existing To provide a safe process the handling, and management of claims. Are there any associated objectives of the Policy or Service? If so what are they? To provide an environment of learning from claims to minimise future risk to the organisation. Does the policy unlawfully discriminate against equality target groups? No Does the policy promote equality of opportunity for equality target groups? Does the policy or service promote good relations between different groups within the community, based on mutual understanding and respect? 11

14 Equality and Diversity Impact Assessment Screening Tool Which equality target groups of the population do you think will be affected by this policy or function? Equality Target Group Black and Minority Ethnic People (including gypsy/travellers, refugees and asylum seekers) BME Women and Men WM What positive and negative impacts do you think there may be for each equality target group(s)? People in Religious/Faith groups RF Disabled People DP Older People OP Children C Young People YP Lesbian Gay Bisexual and Transgender People LGBT People involved in the criminal justice system CJS Staff S Any other group(s) AOG 12

15 Equality and Diversity Impact Assessment Screening Tool Screening Tool Checklist: Summary Sheet Positive Impacts (Note the code of groups affected) Negative Impacts (Note the code of groups affected) None Additional Information and Evidence Required Recommendations None From the outcome of the Screening, have negative impacts been identified for race or other equality groups? Yes No If yes, has a Full Impact Assessment been recommended? If not, why not? Manager s signature: Date: January 2009 Should any advice be required in respect of answering the above questions contact: Equality and Diversity Officer

16 Appendix B Communication and Training check list It is the responsibility of Governance Committees to ensure a full review of any training implications has been undertaken prior to the ratification of any policy. What is the change in knowledge or skills required to achieve the differences that this policy has been designed to deliver for the organisation? Are the communication/training needs required to deliver the changes necessary by law, by national/local standards? If yes, define the requirement(s). What does the organisation actually have to do. For which staff groups is the communication/training need required? Minimal change in knowledge needed other than understanding the content of the policy and the responsibilities it places on staff. A claims process underpins the risk management arrangements for the organisation. No training is required for employees, awareness of the policy and contact details of the claims team for advice and support, is required for all employees. Up to date knowledge of current legislation is required by the claims team with support from legal professionals. Training on specialist areas is delivered as required by legal representatives to the claims team as appropriate. What levels of understanding are required e.g. awareness of policy, understanding of new responsibilities/skills? What means of delivery would be most appropriate e.g. team briefs, management cascade, e-bulletin etc? Awareness of Policy. Awareness of policy implementation via e- bulletin. Who will be the person responsible for liaising with Communications and the Training and Development Departments? Head of Safety Incident & Claims Manager 14

17 Training Needs Analysis Appendix B - continued Service Area Staff / Professional Groups Level of Training 1 Trustwide All staff Awareness of Policy Frequency of Training 15

18 Appendix C STATEMENT AUDIT/MONITORING TOOL The Trust will work towards effective clinical governance and governance systems. To demonstrate effective care delivery and compliance regular audits must be carried out. Policy authors are encouraged to attach audit tools to all policies. Audits will need to question the systems in place as outlined in the policy. It is suggested that between five and eight measurable standard statements be listed, which can then be audited in practice and across the Trust. NTW(O)06 Claims Management Policy STANDARD STATEMENT Yes No Statement 1 Statement 2 Statement 3 Statement 4 Statement 5 Internal Audit of the Claims Management Process NHSLA review of claims handling as they arise Review of the number and types of claims by the Quality & Performance Committee Annual Report on Claims to the Trust Board Compliance with the Woolf reforms for claims management overseen by individual Solicitors The author(s) of each policy to complete the audit/monitoring template and ensure that the results are taken into consideration by the appropriate Governance Committee at each review date. 16

19 Appendix D Policy notification record sheet Policy number NTW(O)06 Policy title Management of Claims Date issued V02.1 June 10 Date of implementation June 10 Directorate/Service/Ward/Department Received by Date received Date placed in policy file I have read the above policy and understand its contents. Name (print) Signature Designation Service/Ward/Dept. Date This form is to be kept up to date at all times to act as a clear record that all relevant staff have received notification of the existence of the above policy, that they have read it and understood its contents. Form to be retained in the policy file in front of the policy specified. Policies and policy index lists are available via Trust Intranet. Index lists are continually updated and current lists should be retained in the front of policy files. 17

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