POLICY FOR THE SUPPORT OF STAFF INVOLVED IN INCIDENTS, INQUESTS, COMPLAINTS AND CLAIMS

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1 UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST POLICY FOR THE SUPPORT OF STAFF INVOLVED IN INCIDENTS, INQUESTS, COMPLAINTS AND CLAIMS TRUST REF: B28/2007 APPROVED BY: POLICY & GUIDELINE COMMITTEE DATE OF APPROVAL: 13 AUGUST 2007 ORIGINATOR: CORPORATE AND LEGAL AFFAIRS REVIEW DATE: AUGUST 2009

2 CONTENTS PAGE NUMBER 1 INTRODUCTION 2 2 SCOPE OF THE POLICY 2 3 ROLES AND RESPONSIBILITIES 2 4 STAFF SUPPORT AVAILABLE SUPPORT PROVIDED BY UHL SUPPORT EXTERNAL TO THE TRUST ON-GOING SUPPORT SUPPORT FOR STAFF INVOLVED IN ALLEGATIONS OF NEGLIGENCE / ABUSE 4 5 INVESTIGATION OF INCIDENTS 5 6 SUPPORTING DOCUMENTS AND LINKED POLICIES 5 7 REVIEW AND MONITORING 5 Appendices Appendix 1 Liability for Untoward Events In The Course Of Your Duties 1

3 1 INTRODUCTION 1.1 The number of incidents, inquests, claims, complaints and external investigations continues to rise both nationally and within the Trust. As a consequence the number of staff requested to provide statements or reports, and to attend inquests, hearing and inspections has also increased. Many staff find such events traumatic and distressing. 1.2 The Trust accepts that it has a responsibility to support staff in these stressful circumstances and this policy details the provision of support within and external to the organisation (see sections 4.1 and 4.2). 2. SCOPE OF THE POLICY 2.1 This policy applies to all members of staff whilst engaged on Trust duties whether they are on permanent, temporary, or honorary contracts of employment. It will also generally extend to others who undertake duties on behalf of and at the request of the Trust including but not limited to volunteers and students. 3. ROLES AND RESPONSIBILITIES 3.1 The Chief Executive, as the accountable officer, has overall responsibility for ensuring that University Hospitals of Leicester NHS Trust (UHL) staff are adequately supported through stressful events as described above. 3.2 The Director of Corporate and Legal Affairs will ensure that the Patient Safety (Clinical Risk), Complaints and Claims and Inquests teams provide relevant staff with appropriate support. This will include advice and information about the process (e.g. attendances at Court and at Inquests), written information regarding the composition of a witness statement / statement of fact, information and advice for complaints meetings, and guidance and structure of clinical reports for claims handling. 3.3 The Director of Human Resources is accountable for ensuring the provision of Occupational Health Services for all UHL employees. The Human Resources Director also has responsibility within this Trust for the provision of a comprehensive, confidential staff counselling service (AMICA). 3.4 The Medical Director and Director of Nursing have responsibility for the provision of professional guidance and support (through the Trust professional structures, i.e. Head of Nursing, Modern Matrons and other senior staff, Ward Sisters etc or Clinical Director, Head of Services, Consultant). 3.5 Within (also applies to non-clinical directorates) directorates, the Director, General Manager, Clinical Governance Manager and other senior staff must ensure that staff are adequately supported through traumatic events such as police investigations, attendance at inquests and professional hearings. Where 2

4 appropriate they must refer staff and/or seek further advice from the Corporate and Legal Affairs directorate. 3.6 All individuals have a responsibility to seek appropriate advice and support, and to advise, in the first instance, their line manager/ senior staff member on duty or professional lead if they feel too stressed to undertake their contracted responsibilities. Directorates may have local procedures in place to manage this process. 3.7 Those giving advice should do so within the boundaries of their skills/knowledge and experience. 4. STAFF SUPPORT AVAILABLE Whilst staff are not obliged to accept the support available they are strongly advised to do so. Further details of support available and the UHL s vicarious liability statement are provided in the Trust s information leaflet for staff entitled Liability for Untoward Events In The Course Of Your Duties that is attached at appendix SUPPORT PROVIDED BY UHL The UHL NHS Trust will provide immediate, appropriate and proportionate support to staff. This support will be provided by: Advice and support of managers and senior colleagues AMICA Staff Counselling Service Corporate Team Advisers (Complaints, Claims and Inquests, Patient Safety Incidents) Assistant Director of Corporate and Legal Affairs (for Police investigations) Professional Leads (Heads of Nursing, Heads of Service, Clinical Directors) Directorate leads e.g. General Manager, Clinical Governance Manager, etc Directorate Human Resources Advisers Staff Side Representatives (local) and Staff Side Office Occupational Health Department Trust Solicitors (who will be appointed by Corporate and Legal Affairs where appropriate). Increased mentorship/ Preceptorship support or professional buddying system. 4.2 SUPPORT EXTERNAL TO THE TRUST In addition to the support structures provided within the Trust and listed above, staff that are experiencing difficulties associated with the event are also encouraged to seek external support and guidance as necessary. Such support may be sought from: Regional Trade Union Representatives Professional Bodies (e.g. NMC, GMC, AODP, SOR, etc) General Practitioner Counselling Services 3

5 Students may also be able to access support through the Post-Graduate Dean, De Montfort University or their tutor 4.3 ON-GOING SUPPORT The Trust recognises that some cases, particularly police investigations, inquests and clinical negligence claims, can be very protracted, causing considerable long-term anxiety / stress for the staff involved. The Trust, through the processes described above, will ensure that the support will be offered from the beginning of the event and will continue throughout until conclusion, and possibly beyond. Staff can continue to access the AMICA counselling service long after the event if they require follow up care. All staff can access the Occupational Health Service at any time on a self-referral basis (provided they are still employed) The support as listed above will only be limited where there is a clear conflict of interest between the individual and the Trust, for example where a member of staff is arrested or suspected of malicious intent or criminal activity. For further details please refer to appendix SUPPORT FOR STAFF INVOLVED IN ALLEGATIONS OF NEGLIGENCE / ABUSE The Trust will provide the same support to staff involved in allegations of negligence / abuse until a clear conflict of interest becomes apparent or arises The corporate teams and / or directorate teams will support and guide staff in a range of ways including: - Advice / Information relating to the provision of witness statements (including Police, Coroner s and Health & Safety Executive (HSE) Statements) Explanation of process when attending the Coroner s Court, including written informal leaflet A Complete Guide to Coroners "Inquests and attendance of member of Corporate Team at Inquest if requested or required. Support at pre-inquest meetings 1:1 advice from Trust Solicitors if required for claims, inquests and police investigations. Member of Corporate Team / Professional Lead to be present at all Police interviews of UHL staff (unless staff member arrested and charged) or unless staff members does not want corporate / professional presence. Guidance and information regarding preparation for court appearance and witness preparation (whilst not influencing the evidence to be given). Template / proforma of complaint meeting agenda Support at meetings with the Police or Health & Safety Executive as set out in Memorandum of Understanding document. A copy of this document is available via the web link below: olicyandguidance/dh_

6 Provision of updates in respect of clinical negligence claims and attendance at meetings between staff and the Trust s solicitors (e.g. to take witness statements, conferences with Counsel) if and when required. Provision of training in respect of claims, inquests, complaints and incidents to ensure that staff understand the processes. 5. INVESTIGATION OF INCIDENTS 5.1 The Trust recognises and accepts that patient safety incidents, complaints and claims have to be investigated both internally and sometimes externally (by the Coroner, NPSA, Police, Parliamentary and Health Service Ombudsman or the Health and Safety Executive). Such investigations naturally cause great anxiety and stress to the staff involved, particularly when a fatality has occurred. 5.2 The Trust will endeavour to minimise the distress to staff caused by such events by: - Providing professional guidance and support Co-ordinating statements / reports required for a case which is a Serious Untoward Incident, a claim and a complaint to reduce duplication Ensuring that necessary criminal investigations are conducted promptly and effectively with appropriate support from the Trust, helping to expedite decisions on any prosecutions. Reviewing working arrangements (including a possible change of work area, working hours or the level of supervisions required) The Corporate Teams will liaise with external bodies to provide prompt feedback regarding the progression or outcome of cases (i.e. Crown Prosecution Service decisions) 6 SUPPORTING DOCUMENTS AND LINKED POLICIES 6.1 This policy should be read in conjunction with the following documents: Information leaflet for staff entitled Liability for Untoward Events In The Course Of Your Duties. Attached at appendix 1 Policy for the Management of Patient and Staff Safety (previously Policy for the Management of Clinical and Non-Clinical Incidents) (DMS article number 12209) Complaints policy (DMS article number 12921) Policy for Trust Indemnity Arrangements (In Respect of Clinical Negligence and Other Third Party Liabilities) (DMS article number 11942) Guide to Statement Writing (see DMS article number 22161) Dignity at Work Policy (parts I and II DMS article numbers and 13654) Whistle-Blowing Policy (DMS article number 13397) UHL Disciplinary procedure (DMS article number 13604) 7 REVIEW AND MONITORING 7.1 The policy will be reviewed biennially unless there are requirements to amend it sooner. 5

7 7.2 The Trust s Patient Safety Group will ensure effective implementation and monitoring of this policy. The Assistant Director of Corporate and Legal Affairs will update the Patient Safety Group quarterly on support available for staff and required actions. 6

8 Appendix 1 Liability for Untoward Events In The Course Of Your Duties An Information Leaflet For Staff The purpose of this leaflet is to provide guidance to staff as to where legal responsibility lies when an untoward event occurs during the course of their employment. In the majority of cases, the Trust will assume liability and will provide staff with legal representation, but there are some instances in which individuals may be held personally accountable and these are outlined below. Vicarious Liability, NHS Indemnity and Trust Indemnity Under the legal rule of vicarious liability, the Trust is liable for any negligent acts committed by its employees during the course of their employment and for any injuries that may arise from such acts. Clinical negligence claims, which are legal actions in civil rather than criminal law, are therefore brought against the Trust rather than an individual member of staff, and any financial costs arising from these cases are usually funded by the NHS Litigation Authority (NHSLA), to whom the Trust pays an annual premium. It is important to note, however, that there are some occasions where vicarious liability will not apply, and that the NHS indemnity scheme and Trust indemnity policy only covers clinical negligence claims that arise from contracted NHS duties. Examples where healthcare staff are not covered by the NHS/Trust indemnity include: Private practice, even if the patient is receiving this private treatment in an NHS hospital (although the staff retained by the NHS to look after private patients, e.g. junior doctors and nurses, are covered, but the consultant is not); Good Samaritan acts; Criminal proceedings; Disciplinary proceedings. For a more detailed explanation of what Trust indemnity is, who is covered and when, please refer to the Policy for Trust Indemnity Arrangements (In Respect of Clinical Negligence and Other Third Party Liabilities) Criminal Proceedings The criminal law process is different to that of a civil claim. Criminal cases are investigated by the police and the evidence is passed to the Crown Prosecution Service, who will decide if the case is to proceed. It is important to be aware that criminal liability lies with the individual healthcare professional rather than the Trust, therefore it is crucial that you join a union to ensure that your interests are protected. The Trust will not be able to provide any financial assistance in respect of legal cover for criminal cases, so you may wish to have some form of professional indemnity cover, which can be provided through your professional body or specialist defence organisation. 7

9 Although it is possible that criminal allegations may be made against healthcare professionals, in reality, this is very uncommon. An assault charge may be made against you should you treat a patient without obtaining adequate consent, but this is more likely to be dealt with via the civil claim route. In addition, an allegation of manslaughter may be made, but it is very unusual for healthcare professionals to be charged with this and successful prosecutions are extremely rare. Professional Accountability/Responsibilities Your actions may also result in the Trust or your relevant professional body (e.g. the General Medical Council or Nursing and Midwifery Council) commencing disciplinary proceedings against you. As with criminal proceedings, the Trust will not be able to provide any legal representation in respect of this, and you will therefore be responsible for your own legal costs. It is important, therefore, that you join a defence union so that you can be provided with representation should you find yourself involved in a disciplinary action. Coroner s Inquests The majority of inquests are relatively straightforward and will not require any legal representation from the Trust, even though we will always seek medico legal advice prior to the inquest hearing, and the Claims & Inquests team will ensure that staff called to inquest hearings are given adequate support. However, if the case has been subject to a criminal investigation at the request of the Coroner, or if the family of the deceased have instructed solicitors, the Trust will be legally represented. All staff required to provide witness evidence will have access to legal advice from the Trust s solicitors. However, if the case was a former police investigation, staff may also wish to have their own independent legal representation at the inquest, even if the case did not result in any charges being made. Support to Staff The Claims & Inquests team, along with the Assistant Directors for Corporate & Legal Affairs, are available to provide help and advice to all members of staff. The team can be contacted should you have any queries or concerns regarding a claim or inquest you may be involved with, and you will also have the support of the Trust s solicitors in these cases. While the Trust will not be able to provide financial support in respect of criminal or disciplinary proceedings, we can still provide you with general advice and we endeavour to provide as much support as we can. Joining a Union UHL is committed to supporting our staff, but, as explained above, untoward events can sometimes lead to situations where the help we can provide to you is limited. It its strongly recommended, therefore, that all healthcare staff join a union. Unions give expert advice and assistance independent of the Trust and can provide representation as and when required. However, it is advised that you check the terms and conditions of your membership carefully, as sometimes legal support is only provided in cases of employment disputes. 8

10 More Information/Further Advice Should you need any advice on the issues outlined above, or if you would like more information, please do not hesitate to contact: Moira Durbridge, Assistant Director for Corporate & Legal Affairs (Risk Management), on extension 2740; Michael Edwards, Assistant Director for Corporate & Legal Affairs (Administration), on extension 8585; Maria O Malley, Acting Claims & Litigation Manager, on extension 8605; The Claims & Inquests Department, on extension

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