Legal Services Policy (Management of Claims and Access to Legal Assistance)

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1 Legal Services Policy Lead executive Name / title of author: Director of Governance & Risk Katharine Thorley / Head of Risk, Compliance and Assurance Date reviewed: 16 Oct 2014 Date ratified: Ratifying Committee: QAC Target audience: All staff involved in the claims process Policy Summary: Equality Impact Statement: Training impact and plan summary: Claims management: there is a mandated process to comply with (civil litigation rules) that the Trust complies with. The claims assistant manages the day-to-day progress of claims. Claimants medical records are provided to solicitors following due procedure. Claims are reported to directorate teams and relevant clinicians, and appropriate investigation is undertaken, including the provision of staff statements as requested. The Trust is open with staff and claimants, and offers support to staff if required. Outcomes of claims are reported to the directorates for sharing and learning within governance arrangements, and summary Trust-wide reports are prepared for relevant committees. Access to legal assistance: staff are encouraged to attend free monthly surgeries when possible. Formal engagement of solicitors on a case requires authorisation of costs. Emergency access to solicitor is available. University Hospital of South Manchester NHS Foundation Trust ( UHSM ) strives to ensure equality of opportunity for all service users, local people and the workforce. As an employer and a provider of health care, UHSM aims to ensure that none are placed at a disadvantage as a result of its policies and procedures. This document has therefore had an initial assessment, in accordance with the equality impact proforma incorporated in the Checklist for Review and Ratification of UHSM-wide Documents, to ensure fairness and consistency for all those covered by it regardless of their individuality. This initial impact assessment indicated that the potential discriminatory impact is low, and no further assessment was necessary No special training requirements identified. Governance & Risk team will provide advice and guidance for staff when necessary. Outline plan for dissemination: Dissemination lead: name / title / ext n o To be published on the UHSM intranet to first line reports to Executive Directors, and directorate leads Kath Thorley; Head of Risk, Compliance & Assurance x5636 This version n o 5 Date published: 1/24

2 Version number Issue Date 1 June Dec July July Oct 2014 Legal Services Policy Version Control Schedule Revisions from previous issue Update with NHSLA clinical Negligence reporting guidelines, Oct 08. Changes in claims reporting to include monthly divisional reports and monthly scorecard updates. Preparation of press releases at time of chronology writing. Updated duties to reflect the organisation change and move to Clinical Leadership Model. Full revision of policy: more explicit description of claims processes; incorporation of new NHSLA risk management reports; new section describing how to access legal support; removal of inquest process as this is now being managed under a separate policy Review of duties list in light of legal team re-structure; review of reporting arrangements / learning from claims in line with revised NHSLA standards Review of procedures in relation to civil procedure rules / Jackson reforms. Review of roles and departmental procedures. New policy template used, which includes a new section: policy statement (sec 2, pg5) Date of ratification by Committee June 07 December 2010 Healthcare Governance Committee July 11 Healthcare Governance Committee July 12 Quality Assurance Committee 2/24

3 Document Compliance Monitoring Arrangements Process for monitoring Responsible individual / group/ committee Frequency of monitoring Role responsible for preparation / approval of report and action plan Committee responsible for review of results / approval of action plan Individual / group / committee that is responsible for monitoring of action plan Audit Head of Compliance and Assurance Once in lifetime of policy Internal auditors Quality and Assurance Committee Quality and Assurance Committee DOCUMENT CONTROL SCHEDULE Summary of consultation process Control Arrangements: Associated documentation Legislation Additional information Review of existing policy, liaison with Trust solicitors and NHSLA, discussion with Patient Safety and Quality and Patient Experience teams. Control of this document: A review every 3 years by the Head of Risk, Compliance and Assurance. A current version this document is published by the policy administrator and is available on the UHSM intranet. Details are recorded in the policy register by the policy administrator. The policy author has retained a master copy of this document. Control of archived documents: The previous version shall be electronically archived by the policy administrator, and retained in line with the prevailing policy on corporate document retention. A copy of an archived version is available by request to the policy administrator at reasonable notice. NHS Litigation Authority (NHSLA) website provides further information and guidance: NHS Redress Act 2006; Data Protection Act 1998; Access to Health Records 1990; FOI Act 2000 Ministry of Justice Civil Procedure rules NHS Litigation Authority (NHSLA) website provides further information and guidance: National Patient Safety Agency (NPSA) although the organisation no longer exists, its website still provides further information and resources in relation to Being Open : 3/24

4 Contents Section Page 1. Introduction and purpose 5 2. Policy Statement 5 3. Scope and exclusions 5 4. Definitions 6 5. Process for the management of claims Notification of a claim Initial actions Disclosure of medical records Claims investigations Staff statements Decision Defence Settlement and Closure of claims Communication and Confidentiality Timescales Press releases Being open Supporting staff Claims reporting and feedback Learning from claims 11 6 Process for Access to Legal Assistance Monthly legal advice surgeries Formal instruction of solicitors - claims Formal instruction of solicitors non-claims Access to legal advice in an emergency 13 7 Duties and responsibilities of key relevant groups and individuals 13 Appendices A Process for management of clinical claims 16 B Process for management of employer s and public liability claims 17 C Claim outcome report attached to report form on conclusion of claim 18 D Legal Assistance: process for containment of costs 19 E Request to Engage with Trust s solicitors for Healthcare-related issues 20 F Mandatory timescales for claims handling process 22 4/24

5 1 Introduction and purpose Legal Services Policy The aim of this policy is to ensure that the Trust fulfils its duties with regard to the management of claims (and potential claims) arising from alleged clinical negligence, employer s liability and public liability. It is based on current guidance issued by the National Health Service Litigation Authority (NHSLA) and complies with its requirements and with the relevant Acts of Parliament. Its purpose is to: a) promote the recognition of potential claims at an early stage to facilitate: timely identification of, assessment of, and learning from, risk management issues and instigation of appropriate control measures appropriate legal support and advice being obtained for the investigation process; discussion amongst parties, through the being open process, to resolve disputes and reduce the need for litigation; and timely and appropriate support being available to staff and patients b) clarify the process by which access to legal support, for claims and other cases, is actioned and authorised, and to control legal expenditure. c) enable settlement of claims at the earliest opportunity where appropriate and in the interests of UHSM; allowing limited resources to be utilised effectively. d) ensure compliance with best practice for claims handling including: requirements of CNST membership and NHS LA reporting guidelines Pre-Action Protocol for resolution of clinical disputes and the personal injury protocol; requirements under the Data Protection Act and Access to Health Records Act. e) ensure effective learning from claims in order to enhance organisational resilience. 2 Policy Statement UHSM acknowledges its duty of care to its patients, staff, and members of the public, and it has many systems and processes in place that this duty. However, the Trust also acknowledges that sometimes things go wrong and it fails to provide the expected standard of clinical care or the expected level of safety in the environment, resulting in a breach of its duty of care. If patients, staff, or the public suffer harm or loss as a result, and submit a claim for compensation against the Trust, it will be handled fairly and expeditely, in association with the NHS LA and the Trust solicitors if appropriate, in order that a just and proportionate settlement is reached, and expenditure on costs kept to a minimum. An essential foundation to this is to ensure that all incidents or events, clinical or otherwise, that may give rise to a subsequent claim, are investigated rigorously and without delay in order that the facts are established and any failings identified. UHSM will defend all claims that are unfounded, and those allegations that the investigation has found to be exaggerated or dishonest. UHSM also aims to learn from its claims, to identify recurring themes, and to implement steps to reduce the number of similar claims in the future. 3 Scope and exclusions 3.1 This policy applies to all UHSM staff, patients and the public. It describes the management of clinical negligence, employer s liability, and public liability claims. 3.2 This policy does not cover: 5/24

6 4. Definitions Legal Services Policy staff of partner organisations suffering loss or harm during their working hours: any claim would be made to SMHL the management of inquests; these are managed by the Quality Support team within the Risk and Governance department under a separate policy. employment tribunals or appeals; these are not indemnified by the NHS LA and are managed by the HR team under a separate policy. ex-gratia payments these are covered by the Trust s Losses and Special Payments Procedure managed by the finance department. 4.1 The Trust may face claims of: Clinical negligence: an allegation of clinical negligence and / or a demand for compensation made following an adverse clinical incident resulting in personal injury (NHSLA). A breach in the duty of care must have occurred and there must be a direct causation link between the breach and the adverse outcome in order for the claim to be successful Liabilities to third parties: a demand for compensation made following an adverse incident resulting in damage to property and / or personal injury (NHSLA), i.e. incidents that arise in the hospital or grounds to members of staff and patients. These are: employer s liability liability to staff in the course of their employment. Examples of these include injuries from slips trips and falls, industrial injuries due to exposure to substances hazardous to health, stress / bullying, and manual handling injuries. public liability liability to any person, including off-duty staff and non-clinical incidents involving patients. These include personal injuries sustained whilst on-site, for example resulting from a slip or trip. 4.2 Tort: a civil (as opposed to criminal) wrong-doing, which may be an act or omission 4.3 Vicarious liability: responsibility of a person or organisation for the torts of another. For the purposes of this policy, UHSM accepts vicarious liability for the acts and omissions of its employees, past and present, committed during the course of their duties. 4.4 Limitation period: the time allowed for the claimant to issue their claim through the court: this must be within three years of the date of the incident which allegedly caused them harm, or of the date of knowledge that an earlier incident has caused harm. The two main exceptions are: children - whose limitation period commences on their 18 th birthday; and people who lack capacity to manage their own affairs where there is no time limit for bringing a claim. 4.7 NHS LA: NHS Litigation Authority - a not-for-profit part of the NHS that manages negligence and other claims against the NHS in England on behalf of member organisations. 4.8 CNST: (Clinical Negligence Scheme for Trusts) indemnification for clinical negligence claims provided by the NHS LA for which the Trust pays an annual insurance premium based on its size, activity and claims profile. 4.9 RSPT: (Risk Pooling Scheme for Trusts) indemnification for employer s and public liability claims provided by the NHS LA. An excess is paid by the Trust for every claim that is admitted, or that is unsuccessfully defended. 6/24

7 5 Process for the management of claims 5.1 Notification of a claim Notification of a potential clinical claim may be: internal alerted via the HIRS, SUI, complaint or inquest investigation process; or external where a request for medical records disclosure has been received from the patient or their representative. In the case of such a request coming from the patient s solicitor, it will be accompanied by a pre-action disclosure form, which states the reason for the request and the intention to possibly pursue a claim. Notification of an actual clinical claim may be via a request for medical records, but more likely by receipt of a Letter of Claim or by service of legal proceedings. These will also include a request for disclosure of records in the unlikely event that these have not been requested previously. Notification of a public or employer s liability claim is by receipt of a letter of claim or by service of legal proceedings. Claims arising from incidents that have occurred since July 2013 are received via a new electronic civil litigation portal on a claims notification form. 5.2 Initial Actions Potential claims Internal notifications: this will be discussed with Head of Risk, Compliance and Assurance to identify any immediate actions that may be necessary in the particular case. External notifications: the Safeguard database is searched for any previous internal investigation (SUI, HIRS, complaint) to establish an overview of the case, and to consider if any further investigation is necessary (see 5.4). All relevant papers are collated and an electronic case file is opened on the Safeguard litigation database. In the case of potentially very high value claims, consideration will be given to notifying the NHS LA in advance of a formal claim being received Actual claims The directorate triumvirate, consultant in charge of the patient s care (clinical claims), other managers who may be connected with the claim, and the divisional governance manager are notified via , with a copy of the NHSLA claims report form, copy of the letter of claim and any other relevant information attached. The Safeguard database is searched for relevant information to establish an overview of the case and identify if further investigation is necessary. The claim is reported to the NHS LA who will allocate a case handler to the case, who liaises with the Claims Assistant. 5.3 Disclosure of medical records Requests for records may be made under the subject access provisions of the Data Protection Act 1998, or the Access to Health Records Act 1990 for deceased patients. The Trust is entitled, under the provisions of the act, to request further details if insufficient information as to why the records are required has been supplied in the application. Under certain circumstances, some information contained within health records may be withheld by the Trust, for example if the record contains third party information (where that third party is not a healthcare professional) who has not consented to their information being disclosed. Therefore, before disclosing patient records, the 7/24

8 Trust has a duty to consider if disclosure would consider serious mental or physical harm to any individual. Refer to the Health Records Policy insert hyperlink for further information. These requests are processed by the Medico-legal Team. A signed authorisation from the patient, or their next of kin (if deceased), must be included. All potential claims should have a completed pre-action disclosure form that would normally contain the reason for the disclosure. The relevant clinician will be informed of the request for disclosure and asked to notify the Medico-Legal Department within 10 working days of any concerns they may have in relation to disclosure and potential harm to an individual. Clear instruction will be given to clinicians that if no response is received in relation to the proposed disclosure in respect of any potential harm that might be caused to the patient or another individual by the stated deadline, copy records will be released to the claimant s solicitor. Requests must be processed within the 40-calendar-day deadline. For further information, refer to the Health Records Policy 5.4 Claims investigations The NHSLA requires trusts to investigate all claims and these investigations must be detailed where claims arise from or involve: an injury or outcome likely to generate substantial compensation, actual or potential publicity or media involvement, obstetrics and paediatrics, fatal incidents, misdiagnosis of life-threatening illness, and serious professional misconduct. This list is not exhaustive. Many claims will already have been investigated as a SUI, RCA, HIRS or complaint and these reports / responses will be collated by the Claims Assistant for inclusion in the file, together with any action plan. Cases that were investigated as SUIs and RCAs will be unlikely to need any further investigation and will already have an associated action plan. Cases that were investigated as complaints may not always have an action plan, in which case the directorate will be asked for an update on the current situation. Where there has been no previous investigation or where this is found to be insufficiently detailed, then further investigation will be undertaken to identify causal factors and any risk management issues that may need addressing urgently. If appropriate, a case will be escalated for SUI review. 5.5 Staff statements Staff who have been asked for a statement to support a claim must cooperate fully with this request. They must refer to clinical and / or other appropriate records as appropriate when making the statement. It must be marked in contemplation of litigation so that it becomes a privileged document. Please see the Statement Writing policy insert hyperlink for further information. Staff are encouraged to use the monthly legal advice surgeries (see section 6.1) for legal advice in constructing their statement. 5.6 On-going management of a claim The NHS LA claims handler liaises with the Claims Assistant who will contact staff if necessary for additional information or statements that may be required. In line with the supporting staff process, the Claims Assistant will involve the staff member s line manager if necessary. 8/24

9 Following receipt of the relevant information from the Trust, the NHSLA review this to make a decision as to whether to defend the case. For clinical cases, they may obtain an independent expert report from a clinician, and may instruct their claims inspector to assist with the investigation of liability claims. Where a claim cannot be defended or litigation risks are present then an out-of-court settlement is likely to be agreed (the vast majority of claims) but if supportive expert evidence has been obtained they will be defended, to trial if necessary. The NHSLA will always liaise with the Trust before making admissions, whether on breach of duty or causation. The NHSLA will instruct Panel solicitors (Hill Dickinson LLP in Manchester) to deal with clinical and liability claims if these are being defended, or where liability has been admitted and damages are being negotiated. Hill Dickinson LLP will ensure that the Claims Assistant is copied into all correspondence to and from the NHSLA. The NHSLA and / or Hill Dickinson LLP will keep the Claims Assistant updated on all material developments. 5.7 Defence Following review of all information and reports, a defence will be drafted by Hill Dickinson LLP. In law, the Trust remains the legal defendant of all claims, therefore Trust officers must sign all defences and other pleadings and disclosure lists with the appropriate Statements of Truth. The Director of Governance and Risk, or Head of Risk, Compliance and Assurance in their absence, is responsible for signing the legal documents. 5.8 Settlement and Closure of claims The NHSLA will inform the Claims Assistant of the outcome and any settlement details of a claim. The Claims Assistant completes the outcome section of the notification and outcome sheet (appendix C) and passes it to the relevant directorate leads to complete. The claim is discussed at the directorate meeting, with lessons learned and any actions required identified and noted. The directorate returns the completed sheet to the claims assistant to be filed on the Safeguard system and hard-copy file. The claims assistant closes the case on the Safeguard database following receipt of the completed outcome sheet, and sends the paper file to storage. Claims files are required by the NHSLA to be kept for 6 years. Additionally, for employer or public liability claims, the NHS LA send an invoice for the excess (or for the total cost of the claim if this is less than the excess). If a potential claim is notified to the Trust, but no further information is received, the Claims Assistant will contact the claimant s solicitor after 12 months, for an update of the current position or to confirm that the claim is not proceeding. Where appropriate, the Claims Assistant will close the case on the Safeguard database and send the paper file to storage. 5.9 Communication and confidentiality The claims process may involve complex communications with a range of stakeholders internal and external to the Trust. The Claims Assistant is the key point of contact for all claims communications. All communications are saved in the claims file and on the Safeguard database. Patient and staff confidentiality will be maintained and the Data Protection Act and Caldicott principles will be observed at all times. 9/24

10 5.10 Timescales There are timescales for actions to be taken and exchange of relevant information (appendix F) that are mandated by statutory (Civil Procedure Rules, Ministry of Justice 2011), NHSLA and Trust requirements for each stage of the claims process. It is important for that claims are resolved as quickly as possible, aiming for early settlement without the need for expensive litigation Press releases In claims likely to involve a media interest (e.g. a significant compensation sum, of topical interest, or involving children or people of interest to the media), a draft press statement will be developed by the Trust solicitors, in association with the Trust Communications and Governance teams, early in the claims management process. This will be approved by the Medical Director, Chief Nurse, and NHSLA, and it will be stored in the electronic and paper file. In the event of media interest, the statement and claim file are reviewed as soon as possible by the Trust Communications and Governance teams, and any necessary amendments made. If substantial amendments are required, further executive approval must be sought, and final approval must be given by the NHSLA before the press statement can be released. If a press statement was not anticipated but where there has been media contact with the Trust about a claim, at any stage, the Governance and Communications teams will liaise with the Trust solicitors to produce a statement as soon as possible. As above, executive and NHS LA approval is required before it is released Being open Claimants and families UHSM supports the requirements of the justice reforms (Civil Procedure Rules, Ministry of Justice 2011) in encouraging more pre-action contact with claimants, and better and earlier exchange of information. The NHSLA welcomes Trusts providing apologies and explanations in line with this guidance. Expressing regret to a patient and providing an explanation does not constitute an admission of liability. Where clinical negligence is admitted, a formal letter of apology is sent to the claimant, unless particular circumstances deem this inappropriate: these would be reviewed by the senior governance team in association with clinical leads as appropriate to the case. Letters of apology are normally drafted by the Trust solicitors in association with the Head of Risk, Compliance and Assurance, and must be written taking account of all previous communication and correspondence with the claimant. They are approved by the NHS LA and Director of Governance and Risk prior to signing by the Chief Executive Staff UHSM recognises that the claims process can be traumatic and stressful for staff involved in the claim or in the incident / case management. They will be treated with sensitivity and kept informed of progress, in keeping with the National Patient Safety Agency s principles of Being open 5.13 Supporting staff It is the duty of the line manager of any staff member involved in a legal claim to support that staff member and to ensure that they are aware of other sources of support which they may access. If 10/24

11 staff are experiencing difficulties associated with the event, they can access independent support through the Trust's counselling service via the Occupational Health Department, or staff may wish to seek the advice of any professional organisation of which they are a member. The Claims Assistant can provide information about the claims process and its implications for individuals, and by advising on the preparation of statements etc. Staff may have an appointment with a representative from the Trust solicitor for informal advice, via free surgeries (see below). If a claim is being defended, the Trust s solicitors will be involved and will advise the staff appropriately. Hill Dickinson have produced a leaflet Clinical Negligence: preparation for trial A guide for clinicians which can be obtained from the Claims Assistant, though staff should note that clinical negligence cases almost never proceed to a court hearing Claims reporting and feedback Reporting to the Directorate New claims are notified to the Directorate Triumvirate and any other manager or clinician identified as being involved with the case via the NHSLA claim report form in accordance with the claims department procedures, by the Claims Assistant (see section 5.2.2) When the outcome is known an updated version of the claim report form, including the outcome / settlement details (appendix C), is sent to the directorate by the claims assistant. In the case of upheld / settled claims the directorate will be asked to report back any changes implemented in order that this information can be collated for the NHSLA. The relevant directorate is responsible for reporting back to relevant staff via their own governance arrangements Trust-wide reporting Learning from Experience Report: the Head of Risk, Compliance and Assurance will provide a claims report quarterly for inclusion in this report, which is presented to the QAC. The report will include: o number and type of new claims o clinical negligence claims analysed by category o employee liability claims including SMHL service provider o public liability claims including SMHL service providers o analysis of themes and trends o settled claims / risk management issues o costs, if available o number of on-going claims Annual claims summary: the Head of Risk, Compliance and Assurance will prepare a claims summary report for the QAC. Liabilities report: the Head of Risk, Compliance and Assurance will prepare a quarterly EL / PL report for the HSW Committee 5.15 Learning from claims For many claims, there will already have been a previous complaint / SUI investigation with an action plan. This may need to be revised with appropriate follow-up if further information becomes available as a result of the claim process. An internal investigation at the appropriate level will be instigated for claims that have not been previously investigated, in order to identify lessons for learning and any actions required at the earliest opportunity. 11/24

12 Hill Dickinson LLP may send Risk Management Reports on clinical claims to the Director of Governance & Risk, who will instigate any necessary follow-up action. The outcome section of the claims notification and outcome sheet (appendix C) that is completed jointly by the Claims Assistant and the directorate is used for feedback to staff via the directorate governance arrangements, with more detailed feedback if appropriate for the staff more directly involved. Claims cases that could be applicable to a wide audience may be presented at joint SUI feedback meetings arranged by the Patient Safety and Quality team. Précis of claims cases are included in the Learning Network News which is circulated throughout the Trust and published on the intranet. 6 Process for Access to legal assistance 6.1 Monthly legal advice surgeries Any staff member involved in a claim, SUI / complaint investigation or inquest can access one of the Trust solicitors to informally discuss aspects and implications of the case, including preparation of statements and reports. Surgeries are normally held on the last Tuesday of the month, and an appointment can be made via the Claims Assistant. The surgeries are free, but If the solicitors have concerns about the case and they feel the Trust needs more formal support, they will discuss the case with the Governance team before undertaking any further work. 6.2 Formal instruction of solicitors for claims If a claim is being defended, the NHSLA will instruct the Trust solicitors to act on its behalf. This is covered by our NHSLA contributions (subject to the applicable excess for liability claims). 6.3 Formal instruction of Solicitors for non-claims Governance-related issues The Trust may formally instruct the solicitors to assist with complex inquest hearings, SUI investigations etc. A Request to Engage with the Trust s Legal Advisors form (appendix E) must be completed by the requesting manager. This must be signed one of the following, as appropriate: Chief Nurse (or deputy in their absence) Director of Risk & Governance Head of Patient Safety & Quality Head of Risk Compliance and Assurance The form must be sent to the Compliance Support Officer who will forward it to the Trust solicitors for an estimation of the cost. The cost of legal assistance for the governance-related cases is met by the governance and risk management budget, and therefore must be authorised by the one of the signatories: the Director of Risk & Governance, Head of Patient Safety & Quality, or Head of Risk Compliance and Assurance Non governance-related issues Sometimes directorates or departments may need formal advice from the solicitors for other issues. In these cases, deemed not to be appropriate to be paid from the governance and risk 12/24

13 budget, a budget code must be entered on the form and this is to be signed by the budget holder/ However, the form must still be passed through to the Governance and Risk team in order to facilitate management of the monthly invoices, which are received centrally in the Governance and Risk team In all cases, a Trust case lead / liaison person will be assigned to the case in order to facilitate efficient case management, streamline the communications and contain costs. The solicitors will advise this person when their costs have reached 85% of the estimated fee and they anticipate that the case will not be concluded within this limit. 6.4 Access to legal advice in an emergency Hill Dickinson will give immediate advice where this is required in cases where there are complex issues involving, for example, consent for treatment or withdrawal of treatment / end of life care. The Trust is charged for this. During working hours staff must contact one of the staff listed in section 6.3, as appropriate, to discuss the case. Staff are urged to anticipate where urgent advice might become necessary and seek this in a timely fashion to reduce the need for out-of-hours assistance. If out-of-hours legal advice is required urgently for an issue which cannot wait till the next working day, staff must contact the duty manager, who will contact the solicitor following discussion and approval by the general manager on-call. 7 Duties related to the implementation of this policy 7.1 The Board of Directors is responsible for: effective identification of risk effective plans to improve organisational resilience ensuring effective use of public funds 7.2 The Quality and Assurance Committee is responsible for: approving the claims policy reviewing the quarterly Learning from Experience Report which contains claims data and analysis facilitating organisational learning identified in the Learning from Experience Report 7.3 Chief Executive has ultimate responsibility for all claims received against the Trust, and ensuring that robust systems are in place for the management of all claims in accordance with the requirements of the NHS Litigation Authority. 7.4 Director of Governance & Risk corporate responsibility for the management of claims at UHSM on behalf of the Chief Executive, responsible for: signing legal documents relating to clinical negligence, employee or public liability claims on behalf of the Trust; reporting internally on claims profile, extent of liability and plans to improve organisational resilience; and liaison with Chief Nurse and Medical Director on matters relating to patient experience and patient safety 7.5 Head of Risk, Compliance & Assurance is responsible for: ensuring the effective management of clinical negligence, employee or public liability claims at UHSM in accordance with the requirements of the NHSLA and relevant legislation or national standards, ensuring all key performance indicators are met; 13/24

14 liaising with the Head of Patient Safety and Quality, Health & Safety Manager and operational teams to ensure lessons for learning are identified, reported, disseminated and acted on; analysing claims data and preparing reports; reviewing, developing and maintaining the Legal Services Policy; and monitoring compliance with, and effectiveness of this policy by monitoring departmental processes 7.6 Claims Assistant works under the direction of the Head of Risk Compliance & Assurance and is responsible for the day-to-day administration of claims in accordance with the provisions of this policy. They are the first point of contact for details of claims, and key liaison person, internally and externally. Main duties include: ensuring all claims are processed according to the relevant departmental procedure, and within the agreed timescales; notifying the required directorate and department managers, clinical leads, relevant individuals and PFI partners when a claim has been received; instigating an initial case review if no previous incident or complaint investigation has been undertaken, and reporting the findings to the Head of Risk Compliance & Assurance; securing evidence (eg training records, clinical records, staff statements) to support the claim investigation and response; establishing and maintaining communication with all relevant stakeholders, internal and external to the Trust including staff, former staff, solicitors, coroner and the NHSLA during the progress of the claim; ensuring that managers are informed of all staff implicated in any claim or potential claim in order that they can be supported; ongoing systematic review of the case files and electronic database, ensuring all appropriate information is entered and updated as necessary, and that claims are progressed and concluded as quickly as possible; and notifying all relevant staff when the claim is concluded, providing appropriate feedback on claims outcomes and collating feedback on lessons learned / changes implemented. 7.7 The Medico-Legal team within the Outpatient Directorate are responsible for the copying of medical records in line with DPA timeframes. 7.8 Head of Patient Safety and Quality will advise the Head of Risk Compliance & Assurance of any SUI investigations or inquests that may give rise to a subsequent claim against the Trust. 7.9 Patient Experience Matron will advise the Head of Risk Compliance & Assurance of any complaint investigations that may give rise to a subsequent claim against the Trust Health and Safety Manager will advise the Head of Risk Compliance & Assurance of any H&S incidents that may give rise to a subsequent claim against the Trust. They will ensure such incidents are investigated appropriately and contribute a H&S report to the incident investigation. In the event of a claim being received that has not been reported, they will provide an H&S overview report for liability claims where requested, and involve any specialist advisors as appropriate Compliance Support Officer coordinates the request to engage forms for legal advice, ensuring that invoices are allocated to the correct budget and assured, and maintains appropriate records Directorate Managers / Matrons are responsible for: co-ordinating the claims process and any associated investigation within the directorate and for ensuring that all necessary information is provided within the time-scales requested; 14/24

15 ensuring that any risk arising from a claim is assessed and recorded on the risk register; that any action required to improve control is delivered, and that improvement is monitored; completion of Claims Outcome Sheets, and advising of the directorate s action in respect of learning from the claim; and ensure the staff involved in a claim are identified and receive appropriate support and information as required in accordance with UHSM s Being Open and Supporting Staff policies All Staff must: act with due diligence and in accordance with best practice in order to ensure that individuals in our care receive high quality care and treatment, and that the surrounding environment is safe and free from hazards for the benefit of patients, colleagues, visitors and themselves; co-operate fully in the investigation and management of a claim to ensure it is processed effectively and to a high standard; and provide statements in accordance with the requirements of UHSM s Statement Writing Policy. 15/24

16 Appendix A: Process for management of clinical claims Internal investigation processes identify a potential claim Pre-action letter +/- request for medical records received from solicitor Ensure investigation complete, anticipating questions and providing answers Records copied and sent to solicitor when completed documentation is received Lorenzo / Safeguard etc searched, file opened If no contact after 6/12, solicitors are contacted re status of claim File closed and archived if not progressing. Formal Letter of Claim is received from solicitor, detailing all the allegations. Sometimes, this is the first indication of a claim. If so, then file opened as above Directorate Triumvirate, consultant, other senior clinicians, notified only if notes review indicates significant likelihood of proceeding and case not previously investigated All relevant information collated, in anticipation of formal claim. Directorate Triumvirate, Consultant, other senior clinicians, as appropriate notified and statements / detailed response to allegations requested. Staff requiring support identified and support offered. Info collated and sent to NHSLA NHSLA informed of formal claim: case handler appointed NHSLA may obtain expert witness statements NHSLA review case: decision made whether to settle or defend. Letter of apology where liability admitted Trust solicitors will be instructed if case is being defended, or if given authority to negotiate Communications team may be involved if required On-going mediation / negotiation with claimant s solicitors Defence drafted by Trust solicitors, signed by the Trust, sent to NHSLA Settlement agreed. (It is most unusual for clinical claims to go to court) F/U for learning: Outcome sheets / Directorate Governance meetings / Learning from Experience / Being Open / reports 16/24

17 Appendix B: Process for management of employer s and public liability claims Formal LoC or CNF received from solicitor detailing the allegations Claims ass t liaises with SMHL with documentation needed from the Trust Reviewed to establish UHSM or SMHL responsibility Lorenzo / Safeguard searched; file opened; relevant managers notified; reported to NHS LA and case handler appointed SMHL are responsible for their own employer s liability claims, and for public liability for incidents occurring within PFI area HIRS reviewed: if the investigation is insufficient, additional info may be requested Health and Safety report requested if not completed at the time of the incident Staff / managers statements. Supporting staff process Other information as relevant to the case, eg risk register entries, EHWB, staff loss of earnings All relevant information collated and reviewed Information sent as requested to NHS LA Information sent as requested to claimant s solicitor If no contact after 6/12, solicitors are contacted re status of claim NHSLA may instruct a claims inspector to review case / site visit or may request further relevant information NHSLA review case: decision made whether to settle or defend File closed and archived if not progressing Trust solicitors may be instructed if case is being defended, or given authority to negotiate Communications team may be involved if required On-going mediation / negotiation with claimant s solicitors Defence drafted by Trust solicitors, signed by the Trust, sent to NHSLA Claim withdrawn, settlement agreed or court proceedings may be issued to settle 17/24 Followed-up within the Trust: appropriate reporting / learning from experience

18 Appendix C: Claims outcome notification added to report form on conclusion of claim 7. Outcome of Claim (to be completed by claims team) Date settled: Damages Claimant s awarded: costs Reason why claim could not be defended (where applicable): Defence costs: 8. Learning from Claim (to be completed by directorate) Was there a previous action plan re this case [e.g. HIRS / complaint / SUI] Yes No Additional Risk Management Implications: Learning points from claim not raised by previous investigation Actions taken: Action type Yes No Detail / progress 1 Management Actions 2 3 Staff training / development / discipline Change to existing policy / practice / procedure 4 Environment improvement 5 6 HIR / RCA / SUI / complaint action plan Equipment review / changes 7 Other learning 8 Audit / Other action taken 18/24

19 Appendix D Legal Assistance: process for containment of costs for healthcare issues Non-urgent assistance or advice required Immediate assistance or advice required Requirement for help with a case is identified A FREE solicitor s surgery is held monthly, usually the last Tuesday. Appointments via the Claims Assistant Advice received and matter resolved? Yes No further advice required No Working hours: contact one of the staff listed in the box below Out-of-hours: contact duty manager who will arrange contact with solicitor for discussion More formal assistance required Request to Engage form completed by manager retrospectively Solicitor will flag if their costs have reached 85% of the estimate, for further review / authorisation Manager completes Request to Engage form, which must be appropriately authorised as stated on form Form passed to Trust solicitors, via Head of Risk Compliance and Assurance, for cost estimate Solicitor provides estimate of cost and returns form to Head of Risk, Compliance and Assurance Trust case lead identified to liaise with solicitors and facilitate efficiency. If case not appropriate for G&R budget then a budget code must be provided and form signed by budget holder Staff to be contacted to authorise immediate legal advice: An Executive Director (or deputy in their absence) Director of Governance & Risk Head of Patient Safety and Quality Head of Risk Compliance and Assurance Duty Manager Invoices received monthly via Integra system and reviewed by Compliance Support Officer: G&R budget - sent for assurance to relevant case lead. Non-G&R budget - re-assigned to appropriate budget holder accordingly Invoices authorised on Integra system 19/24

20 Appendix E Request to Engage with Trust s solicitors for Healthcare-related issues Part A: To be completed by the Trust Date of Request: Case reference: (HIRS, FC n o ) if applicable Directorate: Requested By: Position: Contact No: Case of Need (Provide a short summary of the case, details of the specific advice required from the Trust s legal advisors, and advise of any supporting documentation that will be made available to them) Interim authorisation by (name): Position: * *This must be either Chief Nurse or deputy Director of Risk & Governance Head of Patient Safety and Quality Head of Risk and Assurance Please forward this form completed to: or or for submission to Hill Dickinson. 20/24

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