Claims Policy. Nicola Havutcu, Legal Services Manager (Interim) Version 2.0. Patient Safety Committee. 64\tw\rm\cn\1.1.

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1 Claims Policy Author(s) Nicola Havutcu, Legal Services Manager (Interim) Version 2.0 Version Date January 2012 Implementation/approval Date January 2012 Review Date January 2015 Review Body Patient Safety Committee Policy Reference Number 64\tw\rm\cn\1.1 Table of Contents 1. Summary Introduction Scope Roles and Responsibilities Organisational Responsibilities Claims Management Apologies and Explanations Who can make a claim? NHSLA When to inform the Legal Services Office Action to be taken by the Legal Services Office and Reporting timescales Property Damage Losses & Special Payments procedure and damage to Trust vehicles Claims Management Support for staff involved in a claim Alternative dispute resolution Communication with external stakeholders Risk Management Lessons Learnt and Aggregated Analysis Accessing Legal Advice Training and awareness

2 22. Review and monitoring/audit Associated Policies and Procedures Appendix 1: Inquests Appendix 2 - Litigation Overview Appendix 3: Definitions Appendix 4 - Equalities Impact Assessment Appendix 5 - Policy Submission Form Version Date Author Reason Ratification Required 1.0 Feb 2004 Asha Kaur, Legal NHSLA requirement Yes Services and Claims Advisor / Legal Services Manager 1.1 Feb 2007 Asha Kaur, Legal NHSLA requirement Yes Services and Claims Advisor / Legal Services Manager 1.2 July 2010 Asha Kaur, Legal Services and Claims Advisor / Legal Services Manager Reviewed to ensure compliance with NHSLA Yes 2.0 November Summary Nicola Havutcu Legal Services Manager (Interim) Reviewed in line with process review and to ensure compliance with NHSLA This policy outlines the Legal Services procedures in respect of the management of Claims and Inquests and the process for accessing other legal advice. For the purpose of this policy the definition of a claim is where allegations of negligence and/or a demand for compensation is made following an adverse incident resulting in personal injury, property damage or theft and any clinical incident or complaint that carries a significant litigation risk for the Trust. This policy does not include legal advice required in relation to employment law. All employment queries should be directed to the Human Resources Department. 2. Introduction Homerton University Hospital NHS Foundation Trust follows the requirements of the NHS Executive and the NHS Litigation Authority (NHSLA) in the management of all claims arising from the Trust s activities and the Trust Board is committed to effective and timely investigation and response to these. The Trust recognises that occasions will arise when claims may be made against the Trust and when this occurs the underlying causes need to be identified; lessons learnt to minimise or prevent recurrence and so improve the quality of patient care. Every member of staff is expected to cooperate fully as required, in the assessment and management of each claim. Yes 2

3 It is important that the Trust investigates claims thoroughly and effectively for speedy resolution. The Trust also aims to improve clinical and non-clinical practice in order to reduce the likelihood of claims arising. 3. Scope This policy applies to all those working in the Trust, in whatever capacity. A failure to follow the requirements of the policy may result in investigation and management action being taken as considered appropriate. This may include formal action in line with the Trust's disciplinary or capability procedures for Trust employees; and other action in relation to other workers, which may result in the termination of an assignment, placement, secondment or honorary arrangement. Staff who need to know this policy in detail: Executive Directors Divisional General Managers Quality and Risk Team Staff who need to have a broad understanding of this policy Heads of Nursing and Midwifery Clinical Directors Staff who need to know this policy exists All Senior Managers Trust Offices administration team 4. Roles and Responsibilities Chief Executive Officer The Chief Executive has overall responsibility for all claims concerning the Trust. The Chief Executive has designated the Chief Nurse and Director of Governance as the director with responsibility for both clinical negligence and non clinical claims. When an urgent decision is required by the Trust on Claims Management, including the authorisation of a payment, this will be referred to the Chief Executive and/or the Chief Nurse / Director of Governance and/or Medical Director. The Medical Director and Chief Nurse / Director of Governance The Medical Director and the Chief Nurse / Director of Governance are the Trust Board members accountable for the management of clinical negligence, personal injury and property claims and will: Keep the board informed of major developments on claim related issues Provide reports on claims for the Trust Board, the Clinical Governance & Modernisation Committee and other groups as appropriate Be consulted as regards the proposed settlement of any Clinical Negligence / Personal Injury Claim The Legal Services Manager (LSM) The Legal Services Manager co-ordinates all CNST, ELS, LTPS claims on behalf of the Chief Nurse / Director of Governance. The LSM is responsible for the operational management of all claims and the obtaining of external legal advice. The experience of front-line and specialist staff within the Trust e.g. Data Protection, Child Protection and the Caldicott Guardian is utilised. 3

4 The Trust has one Legal Services Manager who is the legal claims handler. The Legal Claims Handler has responsibility for all claims, Coroner s matters and Legal advice requests at a local level. Additionally: Managing the day to day activity of all claims and report on these matters to the Medical Director, and the Chief Nurse / Director of Governance; Responsible for liaising with; Trust staff, the NHSLA, legal advisors, solicitors and any other relevant person, in relation to claims and potential claims; Overall responsibility for the conduct and control of all claims and claims documentation; Ensure that Trust systems for claims investigation are continually reviewed to ensure that the NHSLA reporting guidelines are met; Sign Trust disclosure statements; Ensure staff involved in claims, inquests or where there is police involvement are adequately supported (See 15.1); Provide reports to the Medical Director and the Chief Nurse / Director of Governance for presentation at the Board level meetings where appropriate; Keeping the appropriate members of staff aware and informed of progress on claims and potential claims; Identifying and reporting any significant trends in line with the Complaints, Litigation, Incidents and PALS Policy. Complaints Manager The complaints manager will cooperate with the Legal Services Manager where a complaint investigation has preceded a claim. In the absence of the Legal Services Manager, the Complaints Manager may be able to locate appropriate documentation from Datix. Quality and Risk Team The Quality and Risk team will maintain regular contact with the Legal Servcies Manager and ensure that information about potentially serious incidents that are being investigated within the Trust are communicated to the Legal Services Manager as quickly as possible (this will be done via the notes of any 24 hour meetings see incident reporting and SUI policy). Senior Managers To be aware of the contents of this policy, disseminate it to staff and to liaise with the Legal Services manager particularly in relation to the list of circumstances in point 13 below. Ensure staff involved in claims, inquests or where there is police involvement are adequately supported (See 15 below). Head of Medical Records To be aware of the contents of this policy and ensure that requests for disclosure of medical are released upon receipt of authority and in line with statutory timescales. To ensure any inability to disclose is communicated to the Legal Services Manager with a view to avoiding a Disclosure Order being served on the Trust. Medical Staffing Manager The Medical Staffing Manager will: Maintain Medical Staffing information; retrieve and provide information, in a timely manner to the Legal Services Manager as required All Trust Staff Trust staff must be aware of the contents of this policy. They must not respond directly to any letters from; solicitors, the police or other outside agency. Letters asking for information or access to information must be referred to the LSM 4

5 5. Organisational Responsibilities The Trust Board The Trust Board via the Risk Committee will: Promote a climate of openness Encourage prompt incident reporting and investigation Provide timely and clear explanations to patients who have concerns Ensure that the NHSLA reporting requirements for the CNST and the RPST are adhered to Receive regular reports for all claims in line with Controls Assurance requirements Risk Committee The Risk Committee will: Monitor the progress and outcome of claims Provide detail on high profile and high value claims Update on legislative changes or new legislation 6. Claims Management Claims management is one of a group of activities that are inter-dependent and complementary. These activities include: risk management complaints clinical audit incident reporting These activities are integral to the integrated governance framework and aim to encourage a climate of openness when something has gone wrong. An incident may be a potential claim. Claims should be used in the same way as complaints and incidents to high-light areas for improvement and to ensure follow up action is taken to reduce the risk of recurrence of the events giving rise to the claim. It is rarely the case that staff set out to deliberately harm either themselves or others. Adverse events which lead to claims often occur due to system errors rather than due to individual error alone. Staff should not indicate to patients or their families that they believe the Trust is liable in a matter or that they believe compensation is due this is a matter to be dealt with via the appropriate procedure within the Legal Services Office. There will need to have been a breach of duty of care which in turn has caused the loss/damage. Following investigation, it may become clear that either there has not been an actual breach of duty or that if there has it has not caused the damage i.e. the damage would have happened anyway. Any claims and potential claims will be investigated objectively and thoroughly in a manner which quickly uncovers the facts and identifies any risks which require to be managed. 7. Apologies and Explanations The NHSLA re-issued its guidance on apologies and explanations in April It emphasises that it is most important that patients receive open, honest and meaningful apologies if there are shortcomings in treatment. It stresses that an apology does not constitute an admission of liability (Please see Trust Being Open Policy for further detail). 8. Who can make a claim? A clinical negligence or personal injury claim may be brought by a: 5

6 patient litigation friend (representative acting on behalf of patient if under disability or is a minor) executor/personal representative of the deceased patient a family member of a deceased patient who falls within the classification of patient able to bring a claim as defined in the Fatal Accidents Act 1976 a Trust employee Claims under Liabilities to Third Parties Scheme (LTPS may be made by a member of the public who has suffered harm under the classifications of claim that are not covered by that scheme). Please see the claims process at Appendix NHSLA The role of the NHS Litigation Authority (NHSLA) The NHSLA is a Special Health Authority set up to oversee the management of claims against Health Service bodies. In this role, the NHSLA administers the following schemes: Existing Liabilities Scheme (ELS) for clinical negligence claims relating to incidents before 1 April Clinical Negligence Scheme for Trusts (CNST), for clinical negligence claims relating to incidents after 1 April Clinical negligence claims (CNST and ELS) The rules for the conduct of civil litigation cases are known as the pre-action protocol for the resolution of clinical disputes and the Trust follows these in the management of clinical negligence claims. NHS Trusts who do not investigate potential legal claims in the pre-action period will be unable to defend cases effectively, and may be subject to cost penalties. The NHSLA will be informed of all clinical negligence claims as soon as it is apparent that a claim is being pursued. There are no excesses applicable for either of these schemes, which means that all claims for compensation arising from allegations of clinical negligence are directly managed by the NHSLA. In line with the NHSLA risk management standards, if Trusts obtain the required accreditation at the various levels, they will be given a reduction on their premiums to the scheme at each level. The NHSLA will manage low value claims themselves and will directly instruct defence solicitors on all larger or more complex claims. The NHSLA has appointed a panel of defence solicitors and will select a firm from this panel to handle a claim. They will always endeavour, wherever possible to appoint the Trust s own solicitors who sit on the NHSLA panel of solicitors. The NHSLA will liaise with the Legal Services Manager who will in turn liaise with the Chief Nurse / Director of Governance about decisions on the handling and settlements of a case in conjunction with advice from appointed panel solicitors who will keep the Trust informed and updated. What must be reported to the NHSLA Clinical or non-clinical incidents, which are reported according to the Trust Incident Policy Claims arising from a complaint investigation where the response, on the facts, indicates that an admission of liability has been implied Requests for disclosure of records where the preliminary analysis indicates a potential claim with a significant litigation risk, regardless of value A formal Letter of Claim from solicitors as the first indication of any action 6

7 The NHSLA also requires notification of any potential claim where there is: MP involvement Media attention Human Rights issues Multi-party actions e.g. organ retention Multiple claims from a single source Novel, contentious or repercussive claims Inquests matters where there is known criticism/concern about a patient s care. 10. When to inform the Legal Services Office The Legal Services Offices should be informed of the following: Serious untoward incidents where possible breach of duty has been identified Complaint responses where admission of liability is implied Requests for case notes where a potential claim is being investigated against the Trust or an actual claim has been made by solicitors Court proceedings served on the Trust Potential service of court proceedings Any Coroner s Court requests for statements from Trust staff Any uncertainty re: the legality of proposed patient care e.g. the withdrawal of treatment or consent issues Issues relating to the Mental Capacity Act Damage to Trust buildings and theft of property Small claims for lost/damaged items, bad debts, write-offs Damage involving Trust vehicles For further details on medical records disclosure and inquests, see Appendix Action to be taken by the Legal Services Office and Reporting timescales In line with the NHSLA Reporting Guidelines Fifth Edition the trust will ensure the following: Requests for disclosure of medical records to be processed within 40 days; Check that sufficient initial information has been provided by patient or adviser and request more if necessary; Collect, retain, paginate and index relevant records; Undertake preliminary analysis where necessary; Have system in place for identifying adverse incidents, significant litigation risks etc; Report relevant cases to be notified to the NHSLA within 2 months of request for records or sooner if event is serious; All letters of claim and Part 36 offers to be notified to the NHSLA immediately; Acknowledge letters of claim within 14 days; Ensure NHSLA / Trust solicitors provide a detailed response to all Letters of Claim within 3 months; All legal proceedings to be notified to the NHSLA immediately; Following service of proceedings, an Acknowledgement of Service must be served within 14 days of service. A Defence must be served within 28 days of service of proceedings. The NHSLA must be notified of the claim in accordance with NHSLA and Trust policy and reporting guidelines who will be responsible for ensuring compliance is met with regard to these timescales. The Legal Services Manager will record on Datix Events Manager adherence to timescales referred to above for audit / NHSLA purposes. 7

8 12. Property Damage The Director of Estates & Facilities must be notified of all instances of damage to buildings and Trust property. The Trust currently pays an excess under the Property Expenses Scheme (PES) and the NHSLA must be notified of any loss before considering reimbursement. Damage to the property by third party vehicles must be reported to Estates & Facilities as well as the Legal Services Manager. 13. Losses & Special Payments procedure and damage to Trust vehicles The Legal Services Office considers small claims where no legal action is anticipated for example for damaged/lost items e.g. clothing, spectacles. However, the Trust will not accept responsibility or liability for any patient s property unless it has been handed in for safe keeping and signed for by a member of staff. A commercial insurer insures vehicles owned by the Trust. All incidents in which these vehicles are involved must be reported to the Director of Estates & Facilities. 14. Claims Management Day to Day Management of Claims For the purpose of this policy the definition of a claim is where allegations of negligence and/or a demand for compensation is made following an adverse incident resulting in personal injury, property damage or theft and any clinical incident or complaint that carries a significant litigation risk for the Trust. Investigation and analysis of individual claims will be co-ordinated by the Legal Services Manager. The Legal Services Manager will be responsible for ensuring that the pre-action protocol for the resolution of clinical disputes is followed and will inform the NHSLA of all reportable claims Any legal documentation and or letters from solicitors that arrive into any Trust department should be forwarded immediately to the Legal Services Manager. The Trust will not pass any information provided onto third parties, except in the anonymous form of statistical information, or where required to under the Trust s statutory obligations. The Legal Service Manager will operate a paperless management system utilising Datix Risk Management Database Claims Module. Requests for Compensation Related to Loss or Damage of Property Any requests for compensation from patients/visitors/staff in respect of any losses or damage to property whilst on Trust property should be notified to the Legal Services Manager immediately. If such requests are granted this will be seen as an admission of liability and should not be undertaken until legal advice is taken and a discussion with the Chief Nurse / Director of Governance has taken place. In all these cases the Legal Services Manager will seek assistance from the NHSLA in the first instance. Clinical negligence claims Management Process When a potential claim is notified to the Trust, the Legal Services Manager will coordinate an investigation and perform the following actions: Check that a letter of authority from the patient accompanies the solicitor s letter in order for disclosure of medical records/and or any information regarding the claimant s treatment at the Trust to be made. Open on Datix, acknowledge the claimant s solicitor s letter with the specified timescale above and notify the NHSLA immediately 8

9 Obtain the medical records for the patient. Inform immediately then write to the consultant in charge of the patient s care, attaching the medical records and a copy of the solicitor s letter outlining the claim. The consultant will be asked to review the patient s records, advise of other staff members who should be approached, review the request for disclosure of the records, issue a report outlining their involvement. The Legal Services Manager will provide details of any complex claims to the Chief Nurse and Medical Director so they can offer support and assistance to the clinicians involved if required. All actions and correspondence will be logged on the Trust s database Once the claimant s solicitor has reviewed the information the Trust has provided, they may issue an action against the Trust to show intent that a claim is to be pursued. The NHSLA will appoint a case manager to liaise with the Legal Services Manager to update on all developments and actions in the case and access further information as and when required from the clinicians involved. All claims remain active until the Trust is notified by the NHSLA by way of a closure form. Personal Injury/Public Liability Claims Management Process When a letter of claim is received the Legal Services Manager will co-ordinate an investigation and perform the following actions: Open on Datix, acknowledge the claimant s solicitor s letter with the specified timescale above and notify the NHSLA immediately Obtain the incident report form in respect of the incident. Obtain the personnel records if the claimant is a staff member. Obtain salaries information if the claimant is a staff member. Obtain copies of the occupational health records if the claimant s solicitor requests these in respect of the staff member. (A letter of authority from the claimant must be attached to this request) Notify the NHSLA and forward copies of all information relating to the claim All actions and correspondence will be logged on the Trust s database Once the claimant s solicitor has reviewed the information the Trust has provided, they may issue an action against the Trust to show intent that a claim is to be pursued. The NHSLA will appoint a case manager to liaise with the Legal Services Manager to update on all developments and actions in the case and access further information as and when required from the clinicians involved. All claims remain active until the Trust is notified by the NHSLA by way of a closure form. Private patient claims Consultants undertaking private practice at the Trust are acting as self-employed practitioners and as such are wholly responsible for the medical care given to private patients. The Trust does not have a responsibility for dealing with claims concerning the medical practitioner and treatment given by them. Equipment used by such medical practitioners is the property of the Trust and therefore any claim brought about due to faulty equipment, the use and or misuse of equipment is the responsibility of the Trust and therefore will be handled under the NHS claims procedure. The HM Coroner and Inquests Should a patient death occur in the hospital which is reportable to the Coroner then the Legal Services Manager will be the point of contact for such resultant investigations and coordinate any clinical reports requested. On the authority of the Executive Team, the Legal Services Manager will obtain support and advice from the Trust s external legal advisors where required Legal advice 9

10 The Legal Services Manager will seek advice from the NHSLA on all claims for compensation in respect of any losses or damage to patients/staff/visitors property and personal affects or expenses incurred. Any required legal advice (including contract) should be requested through the Legal Services Manager. Authority to approach solicitors for further advice will be authority of the Executive Team only. Staff must not contact the Trust external Solicitor directly. Any costs incurred which have not been authorised will be met by individual divisions and not from the Legal Services departmental budget. All requests for legal advice will be logged on Datix by the Legal Services Manager. An emergency legal advice service is provided by the Trust s external solicitors to give such advice in emergencies and out of hours. Out of hours contact with the Trust Solicitor must be authorised by the Executive Director on Call. 15. Support for staff involved in a claim Clinical Negligence and personal injury claims are made against Homerton University Hospital NHS Foundation Trust; therefore the Trust is the named defendant. However, the claim often relates to treatment or failure to administer treatment by an individual healthcare professional. The Trust will provide advice to the healthcare professional (internally and if necessary externally) where they are subject to litigation and wherever possible seek their agreement on actions to be taken though the following process: Immediate support offered to staff Upon receipt of any legal communications suggesting legal action against the Trust, the request as a witness or where there is police involvement, immediate support is offered to involved staff by the Legal Services Manager. This support commences at the point of initial discussions and or investigation. If the claim is preceded by either an associated incident or complaint then support should already be in place and this will be continued by the Legal Services Officer. Ongoing support offered to staff Ongoing support and reassurance will provided by the Legal Services Manager in tandem with the relevant staff s line manager. Advice available to staff in the event of their being called as a witness Any staff member who is called to as a witness will be called to meet the Legal Services Officer for a pre-case review meeting where the appropriate advice on preparing for and attending as a witness. The individual staff member will be given the opportunity to ask questions. Any discussions that take place between staff and the Legal Services Manager will be in the strictest confidence and will not be shared outside of that remit. Action for managers and individuals to take if the staff member is experiencing difficulties associated with the event Additional support and counselling will be made available as required where the staff member is experiencing difficulties associated with an event. This will be provided either through Employee Health Management or through external support providers. This can be arranged direct by the staff in question, their manager or in the case of external support provision through the Legal Services Manager. All support provided to staff by the Legal Services Manager will be recorded on Datix. 16. Alternative dispute resolution A patient and their family may want a wider range of remedies than litigation is designed to provide, for example; an apology, an explanation or reassurance. The Pre-action Protocols recommend that effort should be taken to discuss and negotiate settlement prior to any court proceedings. 10

11 Alternative approaches may include; face to face discussions between legal representatives, staff and the claimant; early evaluation of the claim by a legal expert and internal arbitration. Planned face-to-face meetings may be helpful in exploring further treatment for the patient; utilising the NHS Complaints Procedure (where no formal claim has yet been made); and mediation (facilitated negotiation assisted by an independent neutral party) or through the Being Open Policy. Staff may wish to discuss these options with the Legal Services Office. 17. Communication with external stakeholders It may become necessary to involve external agencies such as enforcing agencies, external advisors etc. either to be involved in the investigation of claims or inquests or for information. Third party expert opinion or investigation may be required if there is insufficient expertise or knowledge within the organisation or if there are political considerations to take account of, e.g. the need to eliminate bias or impartiality. The decision to involve external organisations will be taken by the Director responsible for the area in which the initial event occurred, on the basis of a recommendation from the Legal Services Manager. All communication with external stakeholders will be recorded on Datix by the Legal Services Manager. Communication with the following groups shall be undertaken in the following manner: NHS Litigation Authority All correspondence with the NHSLA Solicitors shall be undertaken by the Legal Services Manager. The Legal Services Manager shall maintain and record on DATIX all records regarding s, phone calls, letters and any other correspondence with the NHSLA in relation to each specific claim. The Legal Services Manager will make immediate contact with the NHSLA as soon as a letter of claim or service of proceedings is received by the Trust, so as to enable a file and communication path to be opened. Claimants No member of Trust staff shall interact directly with the claimant regarding any aspect of his/her claim other than through the Legal Services Manager or through NHSLA or their appointed solicitors. Solicitors The Legal Services Manager may correspond with the claimants solicitor. In regard to reported claims such communication will be in line with advice of the NHSLA. Coroners The Legal Services Manager will correspond with the Coroner s Officer and family/claimants solicitor, but should do so on the advice of the NHSLA where appropriate. (See Appendix 1). 18. Risk Management The Legal Services Manager will ensure that lessons learned in the process of claims management as identified within NHSLA solicitors reports are recorded, actioned and followed up accordingly. Any other Risk Management issues identified locally as a result of Legal Services Management will be shared as necessary with the relevant Directors and/or Risk Management Team. 19. Lessons Learnt and Aggregated Analysis Lessons learnt which are applicable throughout the Trust will be highlighted and reported to the Risk Committee by the Legal Services Manager. The Datix claims database provides anonymised reports on all claims to Directorate and Trust committees and includes trends; actions taken to 11

12 reduce or eliminate reported future similar claims. The weekly Complaints, Incidents, Litigation and PALS (CLIP) meeting will identify areas of commonality across the four dimensions. The resultant CLIP report is presented to the Trust Patients Safety Committee (See Complaints, Incidents, Litigation and PALS (CLIP) Aggregated Report Policy for further detail). 20. Accessing Legal Advice In all instances, staff must contact the Trust s Legal Services Manager for any legal advice required. External legal advice is requested by the Legal Services Officer where appropriate. All requests for external legal advice must first be requested via the Legal Services Office or where not available, the Executive Team. The Legal Services Office is able to provide general legal advice on a wide range of matters. Staff must not contact the external Trust Solicitor directly. Any costs incurred which have not been authorised will be met by individual divisions and not from the legal services departmental budget. As stated above, an emergency legal advice is provided by the Trust s solicitors to give such advice in emergencies and out of hours. Out of hours contact with the Trust Solicitor must be authorised by the Executive Director on Call. 21. Training and awareness This policy will be placed on the policies section of the Trust s intranet site. It is the responsibility of all managers to ensure staff understanding and implementation of this policy. 22. Review and monitoring/audit This Policy will be kept under review in the light of changing circumstances and requirements. As a minimum it must be reviewed routinely every three years. If there are significant changes it must be returned to the ratifying body for approval. The processes for monitoring compliance with this procedure are outlined in the table below: Measurable Policy Objective Trust Claims Overview to include the following: No of claims being handled No of claims by speciality Opened LTPS and CNST claims Closed claims with detail of outcome and any payments made Risk Management Issues Detail of thematic analysis where identified Monitoring/Audit Frequency of monitoring 12 Responsibility for performing the monitoring Monitoring Report Quarterly Legal Services Manager Monitoring reported to which groups /committees, inc responsibility for reviewing action plans Risk Committee

13 Performance report on action taken within timescales Review of performance where communicating with stakeholders 23. Associated Policies and Procedures This policy should be read in conjunction with the following Trust policies and procedures: Complaints Policy Risk Management Policy Incident Reporting incorporating SUI Policy Records Management Policy Data Protection Policy Freedom of Information Policy Healthcare Records Policy and Procedures Manual 13

14 Appendix 1: Inquests The Coroner has a duty to hold an inquest where there is reasonable cause to suspect the deceased died a violent or unnatural death, or has died a sudden death of which the cause is unknown, or has died in legal detention (prison, police or under the Mental Health Act). The Coroner s duty is to establish if possible who the deceased was, when and where he or she died, and how the deceased came by his or her death. There is no definition of what is an unnatural death. There is currently no statutory duty on doctors to report a death. However, common law and NHS and General Medical Council guidance make it important for doctors to refer cases to the Coroner. However, a death should be referred in the following circumstances (this list is not exhaustive): cause of death is unknown death cannot be readily certified as being due to natural causes the deceased was not attended by a doctor during his last illness there are any suspicious circumstances or history of violence the deceased was detained under the Mental Health Act the death might have been contributed to by the actions of the deceased him or herself (such as a history of drug or solvent abuse, self-injury or overdose) where there is an allegation of medical mismanagement If the Coroner decides to hold an inquest, staff may be asked to give oral evidence or provide a written statement. If staff are contacted directly by the Coroner, they should immediately inform the Legal Services Manager for guidance. Guidance on writing statements can be found in the Trust procedure, Investigation Guidance. Staff must have access to the patient s medical records to do this. Statements must be checked with the Legal Services Manager prior to release to the Coroner. Once the Coroner has the statements he/she will decide which staff witnesses to call and the order in which they give evidence. Although in many cases, staff are usually aware of family concerns while the patient is in Trust care, the Coroner s Officer will also usually inform the Trust where he/she is aware the family have concerns and whether the family will be legally represented at the Inquest. General or Senior Managers must inform the Legal Services Office of any death where the family has raised concerns about the patient s care and treatment and where there is likely to be criticism of the Trust. The Legal Services Office will arrange legal representation and provide pre-inquest preparation for staff. 14

15 Appendix 2 - Litigation Overview Pre action Claimant s letter of claim ideally to be received 4 months before service of proceedings Defendant acknowledges the letter of claim within 14 days of receipt Defendant s Letter of Response 4 months from receipt of letter of claim Commencement of Proceedings Claim form issued within 3 years of the date of injury Claimant serves claim form, (within 4 months from date of issue) particulars of claim, schedule of loss and condition and prognosis report Defendant acknowledges service of claim form within 14 days of receipt Defendant files defence within 28 days of service of the claim form unless an extension is agreed Directions time frames can change & will depend on agreement between the parties Allocation questionnaire CMC 16

16 Standard disclosure Approximately 2 months Exchange of liability (breach of duty and causation) witness statements of fact Alternative Dispute Resolution at any point Approximately 3 months Exchange of liability expert reports Agreement of liability expert agendas 35 days before experts meeting Part 36 at any point Approximately 2 months Claimant serves schedule of loss & quantum evidence (factual witness & expert) 2 months Experts discussions and joint statement produced Approximately 2 months Defendant serves counter schedule & quantum evidence (factual witness & expert) Preparation for Trial Conference with Counsel and witnesses, if required. 17 TRIAL 3 months

17 Appendix 3: Definitions Claim The NHSLA defines a claim as allegations of clinical negligence and/or a demand for compensation however made following an adverse incident resulting in a personal injury or any clinical incident which carries a significant litigation risk for the Trust. Claims can be categorised into clinical or non-clinical claims: Clinical claims: clinical negligence Injury to a patient as a result of clinical treatment. CNST, ELS and Ex RHA fall within this category. Non-clinical claims: employer liability Injury to staff during working hours Public liability Injury to a patient or any member of the public by virtue of that individual being on Trust premises (excludes injuries arising from clinical treatment or damages to/loss of property). This also covers Trust staff working their contracted hours off Trust premises. Employment claims Relates to a range of cases such as bullying and harassment, discrimination and unfair dismissal claims considered by employment tribunals. These claims are administered by Human Resources and are not covered by this policy. Miscellaneous Including but not limited to damage to buildings from fire, flood or other events, damage to equipment or property belonging to the Trust, loss or theft of Trust property or equipment Clinical Negligence Scheme for Trusts (CNST) This is a voluntary membership scheme, to which all NHS Trusts, Foundation Trusts and Primary Care Trusts in England currently belong. Covers liabilities for alleged clinical negligence where the original incident occurred on or after 1 April Existing Liability Scheme (ELS) This is a scheme centrally funded by the Department of Health and covers clinical claims against NHS bodies where the incident took place before April Ex RHA This scheme covers any outstanding liabilities for clinical negligence in respect of the former Regional Health Authorities. This is also funded by the Department of Health. Liabilities to Third Parties (LTPS) and the Property Expenses Scheme (PES) This scheme is known collectively as the Risk Pooling Schemes for Trusts (RPST). The schemes are two voluntary membership schemes covering non-clinical claims where the incident occurred on or after 1 April Costs are met through members contributions. Potential claims These include but are not limited to complaints/incidents/inquests that present a significant litigation risk. These may require investigation and reporting to the NHSLA. If you are unsure if something is a potential claim, please contact the Legal Services Office. NHSLA The National Health Service Litigation Authority is a special health authority (part of the NHS) responsible for handling negligence claims against NHS bodies in England. 18

18 Appendix 4 - Equalities Impact Assessment This checklist should be completed for all new Corporate Policies and procedures to understand their potential impact on equalities and assure equality in service delivery and employment. Policy/Service Name: Author: Role: Directorate: Claims Policy v 2.0 Nicola Havutcu Legal Services Manager (Interim) Corporate Date 4 January 2012 Equalities Impact Assessment Question Yes No Comment 1. How does the attached policy/service fit into the trusts overall aims? Meets NHSLA requirements 2. How will the policy/service be implemented? Implementation will be coordinated via Legal Services operational management 3. What outcomes are intended by implementing the policy/delivering the service? To ensure Coroners and Claims management meets statutory timescales and NHSLA key performance indicators. 4. How will the above outcomes be measured? 5. Who are they key stakeholders in respect of this policy/service and how have they been involved? 6. Does this policy/service impact on other policies or services and is that impact understood? 7. Does this policy/service impact on other agencies and is that impact understood? NHSLA assessment and performance reporting to Risk Committee Coroners and their officers NHSLA and their appointment legal agents Clinicians and Senior Management All Senior management have been consulted with prior submission to Policy Group. No NHSLA and Coroners Yes 8. Is there any data on the policy or service that will help inform the EqIA? No 9. Are there are information gaps, and how will they be addressed/what additional information is required? No Equalities Impact Assessment Question Yes No Comment 19

19 10. Does the policy or service development have an adverse impact on any particular group? X 11. Could the way the policy is carried out have an adverse impact on equality of opportunity or good relations between different groups? X 12. Where an adverse impact has been identified can changes be made to minimise it? X 13. Is the policy directly or indirectly discriminatory, and can the latter be justified? X 14. Is the policy intended to increase equality of opportunity by permitting Positive Action or Reasonable Adjustment? If so is this lawful? X EQUALITIES IMPACT ASSESSMENT FOR POLICIES AND PROCEDURES 1. If any of the questions are answered yes, then the proposed policy is likely to be relevant to the Trust s responsibilities under the equalities duties. Please provide the ratifying Committee with information (the form ) on why yes answers were given and whether or not this is justifiable for clinical reasons. The author should consult with the Director of Workforce & Education to develop a more detailed assessment of the Policy s impact and, where appropriate, design monitoring and reporting systems if there is any uncertainty. 2. A copy of the completed form should be submitted to the ratifying committee when submitting the document for ratification. The Committee will inform you if they perceive the impact to be sufficient that a more detailed assessment is required. In this instance, the result of this impact assessment and any further work should be summarised in the body of the Policy and support will be given to ensure that the policy promotes equality. 20

20 Appendix 5 - Policy Submission Form To be completed and attached to any policy or procedure submitted to the Trust Policy Group 1 Details of policy 1.1 Title of Policy: Claims Policy 1.2 Lead Executive Director Charlie Sheldon, Chief Nurse and Director of Governance 1.3 Author/Title Nicola Havutcu, Legal Services 1.4 Lead Sub Committee Risk Committee 1.5 Reason for Policy To provide awareness of the Trust s claims handling procedures and legal advice provisions. 1.6 Who does policy affect? All Trust staff 1.7 Are national guidelines/codes of practice incorporated? 1.8 Has an Equality Impact Assessment been carried out? 2 Information Collation 2.1 Where was Policy information obtained from? 3 Policy Management 3.1 Is there a requirement for a new or revised management structure if the policy is implemented? Yes Yes Internal and external legal advice. Review and advice from the Chief Nurse and Director of Governance. No 3.2 If YES attach a copy to this form 3.3 If NO explain why No management changes, due to on-going claims management approach. 4 Consultation Process 4.1 Was there internal/external consultation? Yes 4.2 List groups/persons involved Internal and external legal advice. Review and advice from the Chief Nurse and Director of Governance. 4.3 Have internal/external comments been duly considered? Yes 4.4 Date approved by relevant Subcommittee 21

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