CLAIMS POLICY November 2012

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1 CLAIMS POLICY November 2012

2 VERSION CONTROL Recommended by Approved by Executive Management Team Finance & Investment Committee Approval date 23 November 2012 Version number 4.0 Review date October 2014 Responsible Director Responsible Manager (Sponsor) Competent Manager For use by Director of Performance and Patient Experience Assistant Director, Healthcare Governance Head of Legal Services All Trust employees This Policy is available in alternative formats upon request Please contact the Legal Services Team on Claims Policy Page: 2 of 25

3 CHANGE RECORD FORM Version Date of change Date of release Changed by Reason for change x 1.0 August Sept 2007 N Barnes Trust Board Approval x April May S Marshall Document Review x July August 2008 S Marshall x July August 2008 S Marshall x July August 2008 S Marshall x July August 2008 N Barnes Incorporate subcommittee feedback Amend content in line with NHSLA requirements Amended to incorporate Equality Impact Assessment Submission to Risk Management Sub Committee x Sept Sept 2008 N Barnes Submission to EMT x Sept October 2008 N Barnes Trust Board Approval x 2.1 September October 2010 R Syed F Buckley x October October 2010 N Barnes Amend content in line with NHSLA requirements Submission to Risk Management Sub Committee x October October 2010 N Barnes Submission to EMT x October October 2010 N Barnes Trust Board Approval x October Nov 2012 R Syed Amend content in line with NHSLA requirements x 3.2 November Nov 2012 N Barnes Submission to EMT x 4.0 November November 12 N Barnes F&I Committee Approval Claims Policy Page: 3 of 25

4 CONTENTS 1 Introduction 2 Policy Context 3 Definitions 4 Responsibilities 5 Management of Claims 6 Types of Claim 7 Procedure for the management of claims 8 Pre-Action Protocol 9 Receipt of Claim 10 Acknowledgment of Letter of Claim 11 Investigation of a Claim 12 Request for Records and Untoward Incidents Reports 13 External agencies 14 Communicating the Decision on Liability 15 Information requirements 16 Reporting arrangements and lessons learned 17 Monitoring Compliance 18 Review 19 Equality Impact Assessment Page APPENDICES NPSA safer practice notice 10: Being open when patients are 1 harmed Claims Policy Page: 4 of 25

5 1.0 Introduction 1.1 The North West Ambulance Service NHS Trust aims to provide the best possible ambulance and pre-hospital care services to the population of North West England. 1.2 The aim of this policy is to ensure that all claims received by the Trust and arising from involvement of the Trust s staff, vehicles or premises, including Clinical Negligence, Employee Liability, Public Liability and liability to Third Parties and claims arising from Road Traffic Collisions (RTCs) are processed. 1.3 Claims may be indications of unsatisfactory standard of events, therefore claims management gives the Trust an opportunity to learn and improve the patient s experience. 1.4 The management of claims will, where possible and appropriate follow the principles of the NPSA s Safer Practice Notice 10: Being open when patients are harmed (see appendix 1) and the principles laid out in the Trust s Being Open Policy. 1.5 The Trust s Claims Policy will be accessible to all patients and service users. A copy must be available, free of charge, to any person who makes a request. 1.6 Please be aware that alternative copies (e.g. languages other than English, larger text, audio recordings, using language line etc.) of this Policy are available, on request by contacting the Legal Services Team, on or 2.0 Policy Context 2.1 In April 1999, the Civil Procedure Rules were introduced as a major reform to the handling of civil legal claims within England. These rules are regularly amended and updated and contain separate rules and practice directions, together with Pre-Action Protocols. 2.2 The overriding objectives of these rules are to deal with cases justly, so far as is practicable, by; Claims Policy Page: 5 of 25

6 1. ensuring that the parties are on an equal footing 2. saving expense 3. dealing with the case in ways which are proportionate; a. to the amount of money involved b. to the importance of the case c. to the complexity of the case d. to the financial position of each party 4. ensuring that it is dealt with expeditiously and fairly 5. allocating it to an appropriate share of the court s resources, while taking into account the need to allot resources to other cases 2.3 The changes affected all claims for compensation, e.g. Accidents to staff at work Accidents to patients/public Clinical negligence Road traffic collisions Any claim where it is alleged that NWAS is in breach of contract, statutory duty or guilty of some other civil wrong which gives rise to an action for damages or an injunction or other civil remedy 2.4 This policy has been drawn up in line with guidance from the Department of Health. This Trust recognises the need to ensure appropriate handling of claims, as they occur and the importance of taking action to recognise such claims through sound risk management. This is in accordance with the requirements of the NHS Litigation Authority guidance and schemes. 2.5 The NHS Litigation Authority administers the Risk Management Standards for the provision of Pre-Hospital Care in the Ambulance Service. This includes the clinical negligence scheme, the liability to third parties scheme and the property expenses scheme. The details of which are available from the NHSLA at Claims Policy Page: 6 of 25

7 3. Definitions Claim Allegations of negligence and demand for compensation made following an adverse clinical/non clinical incident, resulting in personal injury and or damage to property or any incident which carries significant litigation risk to the Trust. Clinical Negligence Scheme for Trusts (CNST) covers all clinical negligence claims against member NHS bodies where the incident in question took place on or after 1 April Incidents before this date are covered by the Existing Liabilities Scheme (ELS). Liabilities to Third Parties Scheme (LTPS) covers employers liability claims for injuries sustained in the workplace, public liability claims for personal injury sustained as a result of alleged negligence by Trust employees, property failures, product liability claims and cover for professional negligence by employees and liabilities of directors. Property Expenses Scheme (PES) covers accidental loss of, destruction of or damage to any property owned by or the responsibility of the Trust. 4. Responsibilities 4.1 The Board of Directors The Board of Directors is responsible for ensuring Trust processes and procedures are sufficiently robust to protect the Trust from claims. Where appropriate, the Board of Directors or delegated Committee of the Board shall receive reports on relevant aspects of claims management and will support all appropriate recommendations arising from claims. 4.2 Executive Directors The Executive Management Team has the responsibility for ensuring that clinical negligence and personal injury claims made against the Trust are managed. Specific responsibility for the management of claims made against the Trust is delegated from the EMT, via the Executive lead, to the Head of Legal Services. Claims Policy Page: 7 of 25

8 4.3 Head of Legal Services The Head of Legal Services has the responsibility for: The management of processing claims Ensuring procedures are in place to ensure the Trust responds to any litigation issues Ensuring that effective working relationships are in place with the NHS Litigation Authority. Ensuring claims are processed effectively. Undertaking agreed procedures and working with relevant managers to ensure investigation of claims is undertaken and evidenced and information is gathered to ensure that the claim is managed appropriately. Ensuring the NHS Litigation Authority has the necessary information to reach a mutual decision on liability. Will have overall responsibility for reporting to the NHSLA and for advising Managers and Executive Directors on claim issues Notifying the financial controller of claims that may result in a financial liability (i.e. those claims that incur costs of 10,000 and above.) Ensuring all relevant stakeholders (e.g. SHA/Lead PCT/Trust) is notified as necessary. Ensuring all documentation relating to claims is kept in a safe and secure environment. Review new claims received by the Trust and ensure the instigation of the investigation process of each claim by the relevant manager. Receiving outcomes of investigations to enable the decision on liability to be reached in conjunction with the NHSLA. Reviewing the Trust s position with regard to claims received and make recommendations for their management to the NHS Litigation Authority Monitoring the status of all claims on-going within the Trust and ensure appropriate action is being taken. Making recommendations to the appropriate personnel within the Trust with regard to the risks to the Trust from claims received. Ensure that the procedure for approval of claim payments in line with the Trust s Scheme of Delegation is followed. Undertaking a review of completed claims to ensure lessons are learnt and make recommendations on steps to prevent reoccurrence to relevant managers. Ensuring the Trust takes proper account of the lessons learnt from such claims via the Trust s Incident Learning Forum. Ensuring that the Finance and Investment and Audit Committees of the Trust receive appropriate claims related reports, upon request. Claims Policy Page: 8 of 25

9 4.4 All Managers responsibilities A Trust Manager has the responsibility for: Working in conjunction with appropriate managers and Performance and Patient Experience Directorate, as appropriate. Reporting all incidents likely to give rise to claims to Head of Legal Services and Investigate complaints/incidents where deemed appropriate. Retaining all appropriate evidence. Passing on any Pre-Action Protocol letters, letters of claim, Court Proceedings and all other related correspondence from third parties unanswered to the Head of Legal Services at Headquarters IMMEDIATELY by /fax and then post. If the Protocol time scale is not met, cost penalties will be attached and unnecessary litigation may result. If the matter is within the Pre-Action Protocol, the Trust has 21 days from the date the letter was sent to acknowledge RTA, Employment Liability or Public Liability claims or 14 days from the date the letter was sent to acknowledge Clinical Negligence claims and needs to notify the NHSLA immediately. If Litigation Proceedings are issued the Trust has 14 days from the date of service in which to lodge an acknowledgement with the court. Should the Trust not comply with this timescale, the claimant has the right to request a judgment in default (Court ruling) against the Trust in respect of the whole claim regardless of the evidence for failure to comply with court proceedings. 5. Management of Claims 5.1 The management of claims will follow, where possible and appropriate, the principles of the NPSA s Safer Practice Notice 10: Being open when patients are harmed (see appendix 1). 6. Type of Claims 6.1 The details of all the following claim types are to be forwarded to the Trust s insurers with an accompanying letter requesting that they deal with this matter on the Trust s behalf. Claims Policy Page: 9 of 25

10 6.2 Claims from Third Parties involved in an accident with a NWAS vehicle should be forwarded to; The motor insurers, as a motor claim. 6.3 Claims from a NWAS employee or agent of the Trust following an accident while acting on behalf of the Trust should be forwarded to; The NHS Litigation Authority as an employer s liability claim (under the Liability to Third Parties Scheme) with a completed LTPS form and list of appropriate documents. 6.4 Claims from a NWAS employee or agent of the Trust where the accident occurred on a NWAS vehicle, should be forwarded to; The motor insurers as a motor claim if the claimant was the attendant. The NHS Litigation Authority as an employer s liability claim, if the claimant was the driver. 6.5 It should be noted that an accident need not necessarily involved a road traffic collision. An injury could be sustained during patient handling taking place inside the ambulance. 6.6 Relevant costs associated with claims made by an NWAS employee from third parties should be re-claimed, by the Trust, via the recognised HR procedures. 6.7 Claims from a patient following injuries sustained whilst in our care will be deemed to be clinical negligence and should be forwarded to; The NHS Litigation Authority as a Clinical Negligence claim with a completed CNST claim report form together with a Preliminary analysis and any relevant documentation. 6.8 Claims from a patient following injuries sustained as the result of an RTC involving a NWAS vehicle should be forwarded to; The motor insurers as a motor claim. Claims Policy Page: 10 of 25

11 6.9 The reporting requirements for Clinical Negligence claims are as follows; 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. Have system in place for identifying adverse incidents, significant litigation risks etc. Report relevant cases to the NHSLA within 2 months of request for records or sooner if the 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. Detailed response due within 3 months. All legal proceedings to be notified immediately Claims from a member of the public or contractor following an accident on Trust premises will be managed under the Public Liability Scheme under the liabilities for third parties and will be forwarded to; The NHS Litigation Authority with relevant copy documentation and a completed LTPS Report Form Claims for Damage/Loss to Trust premises and contents will be managed under the Property Expenses Scheme. Claims over the excess of 20,000 (buildings) and 20,000 (contents) to be referred to The NHS Litigation Authority with copies of relevant documentation and a completed NHSLA report form. Claims Policy Page: 11 of 25

12 7. Procedure for the management of claims Claims Policy Page: 12 of 25

13 8. Pre-Action Protocol 8.1 The parties to a claim for personal injury must follow the appropriate PRE- ACTION PROTOCOLS. The purpose of the protocol is to ensure greater preaction communication between the parties by establishing a timetable for the exchange of information relevant to the dispute and by setting standards for the content of correspondence. 8.2 The protocol provides opportunities for improved communication and the supply of information between parties with a view to leading to pre-action settlements. Therefore, the procedures put in place a pre-litigation stage through which all cases of employers, public and motor liability together with medical negligence claims must pass. 9. Receipt of Letter of Claim 9.1 Claimant s solicitors must let defendants have certain minimum levels of information in a formal letter of claim. The letter of claim sent by the Claimant s solicitor should provide certain minimum levels of information as set out within Annex A of the Pre-Action Protocol. The intention is that it allows the Trust to: Identify the most important avenues of enquiry Understand the basis of the claim being made Make a broad assessment of the value of the claim Letters of Claim received at NWAS sites should be sent by fax and post, unanswered to Ambulance Headquarters for the attention of the Head of Legal Services immediately to ensure appropriate time scales are met. 10. Acknowledgment of Letter of Claim 10.1 There is a requirement to acknowledge the Letter of Claim for an RTA, Employment Liability or Public Liability claim within 21 days or a Clinical Negligence claim within 14 days of it being posted by the solicitor. Failure to do so can result in the solicitor issuing proceedings. Claims Policy Page: 13 of 25

14 10.2 Thereafter, the Trust s appointed legal advisers have 3 months in which to carry out liability investigations and convey a decision on liability. If liability is disputed, the reason for any repudiation has to be explained and supporting documentation provided The rules require that parties attempt to reach agreement on the choice of mutually agreeable experts thus reducing the number and costs of reports. 11. Investigation of a Claim 11.1 Most claims arise from incidents which have been reported under the Incident Reporting and Investigation Policy. It is essential that there is a joint approach to the collation of information for response to claims by the relevant Risk and Safety Manager/Clinical Governance and Safety Manager and the Head of Legal Services, in order to obtain documentary and witness evidence from the original incident investigation On receipt of information arising from the incident initially, the appropriate personnel (namely the relevant Risk and Safety Manger/Clinical Governance and Safety Manager) within the Trust should consider further action as follows: No further action necessary, satisfied that corrective action has been taken to prevent a recurrence. Implement an incident review in line with the Incident Reporting and Investigation Policy Take advice from Trust s solicitors Notify Head of Legal Services and/or Fleet Manger to ensure that NHSLA/motor insurers can be informed where deemed appropriate. Risk and Safety Manager to ensure records relating to RIDDOR reports, investigation reports are made available The Assistant Director, Healthcare Governance should also be informed of all relevant claims relating to clinical negligence, who will ensure that the Medical Director is made aware of these claims. Claims Policy Page: 14 of 25

15 12. Request for Records and Untoward Incidents Reports 12.1 On receipt of a request for health records relating to a potential Clinical Negligence claim against the Trust, a basic investigation will be instigated to establish evidence of: An adverse outcome/serious untoward incident A verbal or written complaint made by the patient Whether the incident needs reporting to the NHSLA 12.2 The investigation of any potential claim will follow the principles detailed in the Incident Reporting and Investigation Policy and should only be undertaken by appropriately trained Managers who have completed either the Incident Investigation or Root Cause Analysis training courses Where a request for access to records is made by a solicitor acting for a third party, or any other claim which does not directly involve the Trust, the following action will be taken, as appropriate: Obtain patient Form of Authority Obtain relevant records of the incident Obtain fee applicable Request statements from staff involved if requested Forward all disclosable records to claimant s solicitor 13. External agencies 13.1 During the management and investigation of the claim, consideration for the use of external agencies and experts should be given by the Head of Legal Services. This can be at the request of the investigating manager or the Performance and Patient Experience and is intended to ensure a full and comprehensive investigation and management of issues is undertaken. This may relate to clinical expertise, use or testing of equipment or specialist technical advice or the need to eliminate bias as part of an investigation. The Head of Legal Services shall liaise as necessary with the Assistant Director of Healthcare Governance to facilitate the use of external agencies. Any costs, which may be incurred, need to be approved in accordance with the scheme of delegation. Claims Policy Page: 15 of 25

16 14. Communicating the Decision on Liability 14.1 The Trust s decision on liability must be communicated within 3 months of the acknowledgement of the Letter of Claim and will be: An admission of liability A partial admission of liability A full repudiation 14.2 On either of the second two, the Trust will also need to provide documentation to support its case The Trust s insurers make the initial decision on liability and inform the Head of Legal Services. In some cases, discussion will be required between the insurers and the Trust to reach the final decision on liability The Trust excess levels are as follows; Public Liability has an excess of 3,000 Employer s Liability has an excess of 10,000 Buildings has an excess of 20,000 Contents has an excess of 20, From 1 st April 2007 the multiple Delegated Limits that decide the PES Limit of Cover will be abolished and one single Limit of Cover of 1,000,000 will apply for all Members The Buildings excess level will remain at 20,000, but the multiple Contents excesses will be streamlined to reflect the single Limit of Cover and a single Contents excess of 20,000 will apply for all Members The Trust s Financial Controller will monitor the provision that has been or needs to be made for claims and will liaise with the Trust s Director of Finance Where a claim is repercussive or a trend has been identified between claims and a decision is made on liability in relation to claims of this nature, the Risk & Safety Manager should be informed so that the Trust Risk Register can be amended to include new information such as liability limits, new risks identified etc. Claims Policy Page: 16 of 25

17 15. Information requirements 15.1 It is essential that information is retained on all incidents and claims, and kept in a secure, well documented manner. This information will include for example; Copy of Incident/Road Traffic Incident report form Witness Statements Health & Safety Practitioner s report HSE documents Photos / sketches or plans Videos taken by NWAS or obtained from other sources (must be clearly identifiable). Any surveillance undertaken requires the permission of the Chief Executive. A copy of appropriate risk assessments completed before the incident and details of changes made after the incident Post incident investigation report detailing all recommendations made Details of the implementation of those recommendations Earnings information 15.2 The Head of Legal Services has responsibility for ensuring all information relating to claims is retained appropriately Full guidance on information requirements is available in the Incident Reporting and Investigation Policy. 16. Reporting arrangements and lessons learned 16.1 The Trust Incident Learning Forum will have the responsibility of identifying any further actions as a result of claims against the Trust which have not previously undertaken. The Head of Legal Services remains responsible for the reporting of claims information to the Incident Learning Forum Lessons identified from claims issues will be addressed through the Trust s Incident Learning Forum, and actioned appropriately Information relating to personal identifiable information or details regarding specific claims is exempt from disclosure under the Freedom of Information Act. Claims Policy Page: 17 of 25

18 17. Equality Impact Assessment 17.1 An Equality Impact Assessment (EIA) has been completed to accompany this Policy. This EIA was reviewed in conjunction with this Policy review during September A copy of the EIA is available on request. 18. Monitoring Compliance Area for Monitoring Duties NHSLA schemes relevant to the organisation Action to be taken, including timescales Communication with relevant stakeholders Monitoring Process Monitored through the KSF process Bi-annual reports completed by the Head of Legal Services to the Risk Moderation Business Group Reviewed annually by the Head of Legal Services and any recommendations for change will be achieved via the responsible Executive Director to the appropriate Committee of the Board By exception where the Trust is outside agreed timescales included in the bi-annual reports to the Risk Moderation Business Group prepared by the Head of Legal Services Monitored by the Head of Legal Services and by exception reported to the responsible Assistant Director 19. Review 19.1 This Policy will be subjected to review, as a minimum, every 2 years. When reviewing the policy the Trust will consider: User feedback of the policy Experiences of staff and management using the policy Audits of policy application/compliance Reviewing the quality of learning that occurs Any external reviews or audits of the policy New Legislation, national guidance, or other evidence considered relevant Claims Policy Page: 18 of 25

19 APPENDIX 1 NPSA S SAFER PRACTICE NOTICE 10: BEING OPEN WHEN PATIENTS ARE HARMED Claims Policy Page: 19 of 25

20 Being open when patients are harmed Being open simply means apologising and explaining what happened to patients and/or their carers who have been involved in a patient safety incident. Communicating effectively with patients and/or their carers is a vital part of the process of dealing with errors or problems in their treatment. In doing so, NHS organisations can mitigate the trauma suffered by patients and potentially reduce complaints. Effective communication, however, is not always provided. As the Department of Health s 2003 Making Amends consultation document states, The individual who has suffered harm as a result of the healthcare they have received must get an apology. The principles of Being open are fully supported by a wide range of royal colleges and professional organisations. Action for the NHS To improve the quality and consistency of communication when patients are involved in an incident, all NHS organisations (including Foundation Trusts) providing patient care in England and Wales should: 1. Develop a local policy, based on the NPSA s Being open policy, but adapted to suit local requirements, by June Local policies should be integrated with existing risk management and clinical governance structures. Organisations with policies already in place are encouraged to review their policy in line with Being open. 2. Raise awareness of the local policy amongst healthcare staff and provide them with the appropriate information and support. The NPSA has developed tools to help. Being open when patients are harmed It is essential that all healthcare staff are aware of the need for effective communication with patients and/or their carers involved in a patient safety incident, and feel supported and empowered to provide this. The NPSA has developed a policy to help healthcare organisations and their staff communicate to a patient and/or their carers what happened in an incident that led to moderate harm, severe harm or death. It is not a requirement of this policy to communicate prevented patient safety incidents, or no harm incidents to patients and/or their careers. The decision to do this comes under the jurisdiction of local healthcare organisations and will depend on local circumstances, although healthcare organisations should consider the advantages of discussing these incidents with patients. Claims Policy Page: 20 of 25

21 Benefits include raising awareness of incidents amongst patients and/or their carers so that they can intervene to prevent similar incidents happening again. For low harm incidents we advise that an apology and explanation is given by staff providing care locally. Existing guidance There is already some excellent practice within the NHS in this area. The aim of this safer practice notice is to consolidate that good work and promote consistency. This safer practice notice is consistent with previous recommendations put forward by other agencies. These include the NHS Litigation Authority (NHSLA) litigation circular 02/2002 and Welsh Risk Pool technical note 23/2001. Both of these circulars encouraged healthcare staff to apologise to patients and/or their carers who had been harmed as a result of their healthcare treatment, and explained that an apology is not an admission of liability. For example, both documents contain the following statement: It seems to us that it is both natural and desirable for those involved in treatment which produces an adverse result, for whatever reason, to sympathise with the patient or the patient s relatives and to express sorrow or regret at the outcome. Such expressions of regret would not normally constitute an admission of liability, either in part or in full, and it is not our policy to prohibit them, nor to dispute any payment, under any scheme, solely on the grounds of such an expression of regret. Furthermore, the importance of being open is emphasised in the Clinical Negligence Scheme for Trusts 2.1.2, Risk Pooling Scheme for Trusts 4.9 standards, the Making Amends duty of candour proposals, and the General Medical Council s Good Medical Practice. Being open is also supported and actively encouraged by many professional bodies and medical defence unions. Next steps The NPSA recognises that there is a need for healthcare staff to develop the skills necessary to be effective when communicating with patients and/or their carers following a patient safety incident. With this in mind, the NPSA has developed a Being open e- learning tool and a video based training workshop. These training tools use incident scenarios from primary care, acute, mental health and ambulance settings to create an interactive learning environment in which healthcare professionals can develop the skills required for holding Being open discussions. Both training tools will be rolled out to the NHS later in Claims Policy Page: 21 of 25

22 NPSA review of actions implemented In 2006 the NPSA will review how the action points have been implemented through the SABS in England. Alternative arrangements will be made for Wales. Where actions have not been implemented, the NPSA will expect the relevant strategic health authority or regional office to provide a full explanation. Resources from the NPSA To help NHS organisations raise awareness of Being Open, the NPSA has developed the following resources: These resources are available to download from the NPSA website at Staff leading on the development of a local policy can order up to ten printed copies of the Being Open policy by calling Contacts For further information about this safer practice notice please contact the NPSA patient safety manager in your area ( For further information about the background to this work please contact: Dr Jane Carthey - Safety Improvement Specialist; National Patient Safety Agency 4 8 Maple Street London W1T 5HD Tel: Background and research Evidence shows that Being open is fully supported by patients. The Australian Open Disclosure Project, in which there was consultation with a wide range of patients and carers, found that they would like to be told about patient safety incidents which affect them; Acknowledgement of the distress that the patient safety incident caused; A sincere and compassionate statement of regret for the distress that they are experiencing; A factual explanation of what happened; A clear statement of what is going to happen from then onwards; A plan about what can be done medically to repair or redress the harm done. Claims Policy Page: 22 of 25

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