CLAIMS MANAGEMENT POLICY

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1 CLAIMS MANAGEMENT POLICY REFERENCE NUMBER DHS 22 APPROVING COMMITTEE(S) AND DATE NHS Central Lancashire Governance Committee AUTHOR(S) / FURTHER INFORMATION Head of Health Standards LEAD DIRECTOR Director of Health Standards THIS DOCUMENT REPLACES DHS 22 Claims Management EQUALITY IMPACT ASSESSMENT AGREED BY POLICY GROUP: REVIEW DUE DATE January 2012 RATIFICATION DATE/DRAFT No January 2010 VALIDATION SIGNATURE

2 NHS Central Lancashire is committed to ensuring that, as far as it is reasonably practicable, the way we provide services to the public and the way we treat our staff reflects their individual needs and does not discriminate against individuals or groups on the basis of their age, disability, gender, race, religion/belief or sexual orientation. Should a member of staff or any other person require access to this policy in another language or format (such as Braille or large print) they can do so by contacting the communications department or the relevant policy holder. NHS Central Lancashire will do its utmost to support and develop equitable access to all policies. Managers are responsible for ensuring staff within their area of responsibility are aware of NHS Central Lancashire policies and that staff adhere to them. Managers are responsible for ensuring that a system is in place for their area of responsibility that keeps staff up to date with new policy changes. Staff are responsible for ensuring they are familiar with policies, know where to locate the documents on the NHS Central Lancashire s website, and seek out every opportunity to keep up to date with them Independent contractors are expected to identify a lead person to be responsible for ensuring staff employed within their practice are aware of NHS Central Lancashire policies. This policy is individual to NHS Central Lancashire. NHS Central Lancashire does not accept any liability to any third party that adopts or amends this policy. NHS Central Lancashire Page 2 of 31

3 CONTENTS PAGE 1 INTRODUCTION Scope Principles 4 2 CLAIMS MANAGEMENT POLICY Responsibilities of the Board, designated Directors the 5 Governance Committee 2.2 Responsibilities of the Claims Manager Information on Claims 6 3 IMPLEMENTATION Management of Claims Use of Legal Advisers Policy Review Policy Audit Monitoring Compliance 7 4 REFERENCES 7 5 GLOSSARY 7 6 APPENDICES 8 Appendix 1 Local Investigating Procedure 8 Appendix 2 Non Clinical Claims Reporting Guidelines 10 Appendix 3 CNST Reporting Guidelines Second Edition April Page 3 of 31

4 1 INTRODUCTION The PCT is committed to timely and effective investigation of claims against the organisation relating to allegations of clinical negligence or personal injury. The PCT will follow requirements and recommendations of the NHS Litigation Authority (NHSLA) with regard to the management of all claims. EL(96)11 "Clinical Negligence and Personal Injury Claims Handling" issued by the NHSLA on 1st April 1996 requires that each Chief Executive ensures that their Trust has a clear policy on the handling of clinical negligence and personal injury claims approved by the Board, which confirms to a set of Standards detailed on the E.L. 1.1 Scope This policy relates to all Claims against Central Lancashire PCT and includes both clinical negligence and liabilities to third parties. 1.2 Principles The PCT will take a proactive approach to Risk Management and in seeking to minimise its risks through a process of continuous improvement will reduce the likelihood of claims being made. The policy will define best practice in the management of claims. The PCT will achieve the best health care possible by remedying areas of inadequacy revealed by investigation of claims. The PCT will reduce, whenever possible the overall cost of claims by seeking settlement of claims in the most cost effective way in consultation with our solicitors. In managing claims the PCT will seek to reflect a fair blame culture within the organisation that is non-threatening in the pursuit of information relating to any claim. Every member of staff is expected to co-operate fully, as required in the investigation and management of each claim. Managers are responsible for ensuring that their staff are aware of this policy, and that this information is given to all new staff on induction. In addition managers are responsible for keeping staff up to date about any changes within the policy. Page 4 of 31

5 2 CLAIMS MANAGEMENT POLICY 2.1 Responsibilities of the Board, designated Directors and the Governance Committee The PCT Directors with responsibility for clinical negligence will be the Director of Planning and Performance Improvement and the Director of Finance. They will keep the Board informed of major developments on claims related issues. The PCT Director with responsibility for personal injury and property expenses will be the Director of Finance. The Director will keep the Board informed of major developments on claims related issues. The Management Team will have delegated responsibility on behalf of the Board to authorise settlement or approve other minor claims. The Governance Committee will monitor the progress and outcome of claims including expected settlement dates and the allocation of responsibility for and implementation of remedial action arising out of particular claims. The Governance Committee will receive regular information on individual and aggregated claims. 2.2 Responsibilities of the Claims Manager The Claims Manager will be responsible for: receiving, acknowledging and assessing all new claims that may arise against the PCT; identifying and arranging for the preservation of relevant records and other items, such as equipment, involved in incidents; establishing and as necessary maintaining contact with relevant staff and former staff; assessing in accordance with both legal and financial expert advice whether individual claims should continue to be defended; supporting staff and former staff involved in the litigation process; ensuring that information emerging during a claims investigation is shared with staff directly involved in the case, and that lessons learned in the process of claims management are used for risk management purposes in the context of future service provisions and safety; preparing reports and other submissions as required on: the number and aggregate value of claims and details of any individual claim; the progress and likely outcome of those claims, including the expected settlement date; the final outcome of the claim; any proposed remedial action arising out of a particular claim. provide reports and other submissions required by the NHSLA or its delegated representatives Page 5 of 31

6 In his/her absence the Claims Manager will be supported as required by nominated officers as delegated by the designated Directors. 2.3 Information on Claims The Claims Manager will monitor all claims relating to the PCT, including possible financial impact and other relevant information. This will enable the Claims Manager to provide relevant and timely information as required by the Board, The Governance Committee and the NHSLA. However, due regard will be paid to the confidentiality of data relating to individuals. 3 IMPLEMENTATION 3.1 Management of Claims All claims will be managed in accordance with the attached RPST/CNST guidance documents issued by the NHS Litigation Authority (Appendix 1&2). These may be subject to periodic change and will be replaced as required between policy reviews to ensure compliance with national guidance. Day to day activities in the management of clinical negligence and personal injury claims will be carried out by the Claims Manager. The Claims Manager will act as the first point of contact within the PCT for all clinical negligence and personal injury claims. Any approach or correspondence received within the PCT in relation to a claim against the organisation must be passed to the Claims Manager without delay. The Claims Manager will keep the designated Directors appraised of progress in relation to any ongoing claims and ensure that their authority is sought regarding any issues outside their operational remit. Procedures for the local management of claims are described at Appendix Use of Legal Advisors For all claims the responsibility for instruction of solicitors will rest with the NHSLA through the panel arrangements. The Trust will continue to manage its own solicitors in respect of other matters requiring specific legal advice. The PCT will ensure that legal advice is obtained as necessary from solicitors with appropriate expertise. Steps will be taken on behalf of the Board to ensure that such legal advisors have adequate professional indemnity cover, bearing in mind the potential value of claims resulting from actions taken as a result of advice received. Page 6 of 31

7 3.3 Policy Review This policy will be reviewed every two years or in light of changes to guidance or good practice. 3.4 Policy Audit Implementation of this policy will be subject to the PCT audit process for all policies and procedures. 3.5 Monitoring Compliance An overview of the claims in the system will be reported every six months to the PCT Governance Committee.The Governance Committee will be responsible for monitoring claim trends and ensuring that the lessons learned from claims influence future practice in order to reduce the potential for claims in the future. 4 REFERENCES CNST Reporting Guidelines (Second Edition) April NHSLA Non-Claims Reporting Guidelines. NHSLA NHS Executive, 1996, EL (96) 11 "Clinical Negligence and Personal Injury Litigation: Claims Handling". Department of Health. 5 GLOSSARY NHSLA EL PL RPST CNST LTPS NPSA National Health Service Litigation Authority Employers Liability Public Liability Risk Pooling Scheme for Trusts Clinical Negligence Scheme for Trusts Liabilities to Third Parties Schemes National Patients Safety Agency Page 7 of 31

8 APPENDIX 1 LOCAL INVESTIGATION PROCEDURE All claims will be investigated, but the scope of investigation will depend upon the type and seriousness of the claim and its impact or potential risk to the PCT. Claim investigations will not always follow the exact same processes. This is because some things are obviously more serious than others, so they require more urgent and immediate action. Sometimes claims are much more straightforward and can be dealt with through less urgent processes. What is important is that all claims are investigated and that the same principles for investigation are applied to each individual situation. Basic Principles The basic requirements for any investigation are the following: Establish the sequence of events Review records/gather evidence Interview those involved Analyse findings of investigation Draw conclusions Make recommendations Suggest actions Identify lessons Review outcomes Who Should Investigate The Claims Manager will take overall responsibility for co-ordination of investigations in liaison with the delegated Director(s). Responsibility for undertaking investigations may be delegated to specific officers depending on the nature of the claim. For particularly serious Claims the Director will oversee the investigative process. It may be that, at the discretion of the Chief Executive or Director of the service involved an officer of another service will conduct the investigation to ensure objectivity. For some particularly serious Claims the Claims Manager may convene an investigation panel at the discretion of the Chief Executive or responsible Director. The panel will be led by a Director (or nominee) and usually involve the Head of Service, Claims Manager, other designated officers and perhaps an external person to reinforce the impartiality of the process. This process will follow the same principles as those described in the PCTs Policy for the Management of Serious Untoward Incidents. Page 8 of 31

9 If it is considered that external solicitors are required to assist in the investigation or for additional specialist advice they will only be approached on the Direction of the Chief Executive or responsible Director. Contact will be made through the Claims Manager or Director Root Cause Analysis Root Cause Analysis involves looking for the underlying failures in the system that might have led to the event happening. A whole chain of events that might have been thought to be of little significance can sometimes become a big problem that could lead to a mistake happening. It is the investigation of these underlying causes that can help us to learn a great deal from an incident. It is not always necessary to undertake a full Root Cause Analysis as part of an investigation. Detailed instructions about using root cause analysis techniques are contained within the PCT Incident Management Policy and the PCT has a number of staff trained in this type of investigation to support the Claims Manager. Record Keeping Accurate records are fundamental to any investigation. The Claims Manager will ensure that all documentary evidence is kept in a specific file for each claim. Any evidence gathered from interviews or factual reports must follow these guiding principles: Records need to be: Accurate and contemporaneous. Legible. Identifiable. Well organised. Easily located. and include the following: A signature that is legible. The status of the signatory. All internal investigations must be completed within 20 working days of the receipt of the claim unless circumstances make it impossible. Page 9 of 31

10 APPENDIX 2 NON-CLINICAL CLAIMS REPORTING GUIDELINES For use by all Members of the Liabilities to Third Parties Scheme [LTPS] 1 Introduction 1.1 These guidelines are intended to assist Members in processing all categories of claim under LTPS, but predominantly EL and PL claims. Members should be familiar with the LTPS Rules and nothing in these guidelines is intended to override the Rules. The LTPS Rules can be downloaded from our website at These guidelines provide a framework within which Members should report new claims to NHSLA. 1.3 Receipt by a Member of an EL or PL claim involving personal injury will usually trigger the Pre-Action Protocol for Personal Injury Claims. The Protocol sets in train a timetable that requires responses within specific timescales. 1.4 Claims should be reported using the standard LTPS Incident Report Form which can be found on our website at If a Member wishes to claim under the Scheme it is imperative that there is reliable and complete information sent to the NHSLA at the first opportunity. 1.5 Where delays occur and the required information is incomplete or not readily available, delivery of the specific responses required by the Protocol timetable may be compromised. Increases in costs that arise from delays attributable to the Member are not covered by the Scheme. 1.6 Members should have effective and integrated processes in place for complying with relevant Health & Safety legislation, together with proper measures through line management to ensure the earliest recording, investigation and assessment of incidents, irrespective of the likelihood of a formal claim. 1.7 Claims should pass to NHSLA via a nominated representative, who should have a thorough understanding of the claims management process. 1.8 Where a claim is being made under the Scheme, NHSLA authorisation is required before admissions are made and/or any compensation offered. Page 10 of 31

11 There is no obligation under the Scheme for Members to be granted assistance where admissions and offers have been made by the Member in the absence of NHSLA authorisation. 2 Contact with NHSLA Members may contact the NHSLA non-clinical claims team at: 1 st Floor Napier House 24 High Holborn London WC1V 6AZ DX 169 London Fax: The current Team Leaders are: Susan Georgiades (Tel: ) - Members A to M David Duguid (Tel: ) - Members N to Z The LTPS Scheme Manager is Steve Chahla (Tel: ) More local contact is via the Member s allocated Claims Inspector, where that person has been instructed to conduct investigations on site. A more detailed NHSLA contact sheet circulated to all Members on a quarterly basis. 3 When should a claim be notified to NHSLA? 3.1 Members are required to report claims upon receipt of a formal Letter of Claim, where the total cost will approach or exceed the applicable excess. The standard excesses applying under LTPS are: 10,000 Employers Liability claims 3,000 Public Liability claims Members should bear in mind that the excess applies to the total value of the claim; that is, damages, plus any Claimant and Defence solicitors costs. 3.2 All reportable EL claims must be accompanied by the documents on the standard disclosure list applicable to the particular type of claim. There is a link to the NHSLA Disclosure List on our website please see Claims/Schemes/RPST/NHSLA DisclosureList.doc. Page 11 of 31

12 3.3 NHSLA offers a handling service for claims falling within the excess, subject to a handling fee which currently stands at 200. The handling of such claims by NHSLA remains subject to the Scheme Rules. The handling fee itself is subject to revision from time to time. 3.4 NHSLA also encourages Members to report serious adverse incidents and/or serious adverse outcomes representing a significant litigation risk prior to an actual demand for compensation being made. These may come to light through: - Normal in-house Incident recording/investigation - Complaints which look highly likely to lead to claims - Other matters identified through Risk Management processes 3.5 NHSLA seeks early notification particularly where the following features arise: - Fatal incidents - MP involvement - Media attention - Human Rights issues - Multi-party actions - Multiple claims from a single cause - Novel, contentious or repercussive claims 3.7 Once the claim has been notified under LTPS, the Scheme Rules require that the following also be notified to NHSLA immediately upon receipt: - Any further correspondence from or on behalf of the Claimant (particularly any letters triggering time limits under the Pre Action Protocol for Personal Injury Claims for example, Part 36 Offers to settle or nomination of medical experts) - Any proceedings or written notice thereof 4 Action in response to a notification of a claim for compensation 4.1 The Protocol requires Claimants to send a formal Letter of Claim containing a clear summary of the facts upon which the claim is based, including the main allegations of negligence, the nature of the injuries, present condition and prognosis, and any financial loss. 4.2 The Letter of Claim triggers specific time limits, indicating that the legal process has commenced, and there will be 3 months to respond formally. Page 12 of 31

13 The Letter of Claim must be acknowledged within 21 days. Members should do that, indicating that the matter has been reported to NHSLA. 4.3 There are also incidents, not necessarily the subject of a formal Letter of Claim, that require Members to commence immediate investigation and the collation of documentation. These are generally of a more serious nature, for example: Health & Safety Executive investigations Fatalities Other serious injuries. Police investigations This list is not exhaustive and if Members are in doubt as to whether an incident is serious they should seek advice from the NHSLA. 4.4 Members should try as far as possible to carry out the following steps immediately upon receipt of a Letter of Claim: Collect and collate records and any other information relating to the incident and the person(s) involved, including incident reports, complaint files and any data held on computer files which are not routinely printed and stored in hard copy format Identify all relevant personnel and their contact addresses and telephone numbers. 4.5 Members should be aware that reports which do not have as their sole or dominant purpose actual or prospective litigation are likely to be discloseable. This means that their content ought to be factual and avoid opinion and supposition as far as practically possible. The interpretation of such reports may amount to an admission of liability but this should not inhibit Members from dealing properly and effectively with any remedial action that may be indicated. 4.6 Matters with no prior record or incident investigation Where a Letter of Claim relates to an incident not previously recorded and/or not previously internally investigated by the Member immediate action should be taken to implement the appropriate investigations. The urgency arises because of the Protocol timescales (see Sections 1.3 and 4.2) for delivering a reasoned response to the Letter of Claim. The usual investigations in respect of a previously unrecorded incident and any additional investigations arising directly from the Letter of Claim should proceed urgently as a single process. Page 13 of 31

14 Note: documents arising from investigations with such a dual purpose are likely to be discloseable in subsequent litigation (see Section 4.5) 4.7 The following basic documentation should be sent in with all such cases: - - Covering letter clearly indicating a new notification is attached - Completed LTPS Incident Report Form - Copies of the correspondence from the claimant s solicitor - Any prior correspondence, e.g. initial letter/s of complaint - All reports of investigations into the incident - Copies of comments from supervisors and/or managers obtained as part of the initial incident investigation - Unless the Member is already satisfied that liability attaches for the incident, the documents on the standard disclosure list applicable to the particular type of claim. 4.8 NHSLA will liaise with the Trust regarding the information submitted and any further investigations required. 5 Miscellaneous 5.1 Ex-gratia payments Ex-gratia settlements offered by Members are by definition not payments based upon legal liability and are therefore not recoverable under LTPS. 5.2 Compensation Recovery Unit (CRU) The requirements of the Compensation Recovery Unit for reporting cases and obtaining certificates of benefits recoverable remain in place. For all claims made under the Scheme this task will be handled centrally by the NHSLA. Members should as far as possible try to identify and provide the National Insurance numbers of all employee or patient Claimants. 5.3 Mediation/Alternative Dispute Resolution (ADR) ADR can take one of a number of different forms, for example, a time-limited discussion. Mediation is a specific form of ADR and involves a trained mediator to facilitate settlement. The NHSLA is committed to ADR and Mediation in appropriate circumstances as a means of resolving disputed claims. Claims of relatively limited financial value, but possessing major emotional elements, for example, the death of a child, might be suitable candidates. All cases, however, may potentially benefit from mediation or ADR at any stage. Page 14 of 31

15 5.4 Claimant s Part 36 Offers It is possible that these may be made at an early stage, even where the first notification is a Letter of Claim. Punitive consequences may flow from offers made under CPR Part 36 which are either rejected or fall out of time. Therefore any such offer, whether or not the Member believes the terms of the offer to be valid, should be immediately reported to NHSLA by telephone and fax. This must happen as soon as the documents are received as it is extremely important to avoid delay. Members should not give any indication to the Claimant s solicitors that any such offer is valid, or that time runs from a particular date. Where such offer letters may be received in other parts of the Members operation (for example, the Chief Executive s office) staff working in these areas should be trained to recognise such offers and Members should develop a fast track to process them. 6 Scheme Indemnity 6.1 Whilst occasionally that course of action has proved necessary, it is only in the rarest of circumstances that NHSLA would decline to indemnify. 6.2 NHSLA recognises that a judgment has to be made when deciding whether or not to report a case in accordance with section 3 of these guidelines. 6.3 Where there have been delays in reporting NHSLA will only raise the issue where there has been prejudice caused by identifiable additional case cost. 6.4 It is not possible to be prescriptive as to every circumstance which may give rise to prejudice and NHSLA will consider each set of facts individually. 6.5 Members are encouraged to speak to the Authority if there is any doubt about particular circumstances and whether they should be reported or not. NHSLA Risk Pooling Team [revised October 2007] 7 Liaison between NHSLA and Trusts 7.1 NHSLA will discuss and consult with Members on the defensibility or otherwise of claims before implementing the decision reached. Page 15 of 31

16 7.2 Risk Management issues not identified by Members in their initial incident investigation will be raised and discussed with the Trust contact as the claim investigation progresses. 7.3 NHSLA or its solicitors will notify Members of Court Hearings. 7.4 Where required Defences and other relevant pleadings will continue to be signed by Member representatives as the legal Defendants to litigation. 7.5 Where claims are likely to generate media interest, NHSLA will liaise with the Trust to agree a press release or the position to be adopted. 7.6 NHSLA will send a closure document to Trusts at the end of each claim, giving a breakdown between damages, Claimant costs and Defence costs. 7.7 Upon conclusion of the claim NHSLA will raise an invoice in respect of any unpaid Member Liability under the Scheme. Summary of LTPS Reporting Requirements Have a system in place for identifying and appropriately investigating and documenting adverse incidents as soon as they are discovered. Report all Letters of Claim to NHSLA immediately with a completed LTPS Report Form and all existing records, reports, and related documents. Acknowledge all Letters of Claim within 21 days. All subsequent letters and in particular all Part 36 offers to be notified to NHSLA immediately. Ensure priority is given to identifying, creating and sending further documents and information requested by NHSLA on any claim. Priority assistance to NHSLA or others acting as their agents in identifying and making available the personnel relevant to issues arising in any claim. All legal proceedings to be notified immediately. Page 16 of 31

17 APPENDIX 3 1. Introduction CLINICAL NEGLIGENCE REPORTING GUIDELINES FOURTH EDITION JANUARY This guidance has been developed jointly by the NHSLA and the Association of Litigation and Risk Management (ALARM) to provide a framework within which claims managers working at Trust level will report new claims as they arise. The guidance becomes effective as from 1 January It will be the subject of further review periodically. 1.2 These recommendations are aimed at securing best professional practice at local level. Through the provision of reliable and complete information from the start of any claim, Trusts will be able to ensure that any healthcare governance issues which may emerge are addressed promptly. In addition, that the cost of further investigation, if and when handled by Panel Solicitors, is minimised. 1.3 The guidance therefore makes a number of key assumptions:- That Trusts have in place effective and integrated processes for risk management and for healthcare governance which operate across the entire range of services. For the purposes of this document, clinical governance is subsumed within the wider term. That a proportion of complaints will continue to contain demands for compensation. That there will, for some time, continue to be wide variations in the abilities of different Trusts to process claims at a local level. 1.4 For these reasons this guidance describes a standard of professional practice which is most likely to be attained in Trusts offering acute services, as these give rise to the greatest numbers of claims. Other organisations, such as Primary Care Trusts and smaller mental health Trusts, which generate fewer claims, may not feel able to justify the retention of dedicated expertise at the level that is advocated. This is a matter for individual trusts to decide. In these situations, the appropriate expertise could be bought in from another Trust by way of either a cost per case arrangement, or a service level agreement. This guidance incorporates a minimum standard which will be expected of all Trusts including those generating a small volume of relatively low value claims. 1.5 Trusts buying in claims services in the manner suggested above should ensure that appropriate contractual indemnities are in place. At present, all claims for compensation arising from allegations of clinical negligence will pass through the NHSLA via a nominated representative at Trust level, who will be expected to have a general understanding of the claims management process. Trust claims handlers should be aware that NHSLA authorisation is required before any admissions may be made and/or monetary compensation offered. There are no longer any excesses applicable to any of the clinical negligence schemes. Page 17 of 31

18 In the absence of such authorisation, the NHSLA will not reimburse Trusts either for the compensation awarded or for any of the costs generated. Such payments, if made by a Trust, will fall outside the scheme and could possibly result in criticism from auditors. 1.6 Following the CMO s report, Making Amends, in 2003 the NHS Redress Act was passed in November This outlines a new arrangement for dealing with small clinical negligence claims arising from hospitals. It is planned that prompt investigations will be undertaken by Trusts and that explanations and apologies will be given, together with a report on what action has been, or will be, taken to prevent a recurrence. Existing legal criteria regarding negligence and causation will be retained when determining whether or not financial compensation will also be offered. Full details of the scheme will appear in regulations, after a period of consultation. 1.7 This guidance is now split into sections dealing with:- The initial response to a request for records and/or notification of a claim for compensation [2] The preliminary analysis [3] Reporting claims [4] Large value claims [5] Lower value claims [6] Independent Sector Treatment Centres [7] Miscellaneous [8] Page 18 of 31

19 2. The Response to a request for Disclosure of Records 2.1 The Request Requests for disclosure of records are usually made under the subject access provisions of the Data Protection Act There are three usual routes for these requests:- By a patient or his representative directly (Personal Disclosure) By a solicitor requesting records in respect of a claim against another party (Third Party Disclosure) By a solicitor acting either to investigate or notify a claim against the Trust (Pre-Action Disclosure) The volume of Third Party Disclosure is by far the greatest. However for both this and Personal Disclosure, Trusts must have in place a procedure for reviewing the records requested to ensure that the provisions of the Act are complied with, and to note if the record contains information which might possibly cause the requestor to commence a claim against the Trust This initial review should be carried out by a member of staff who is familiar with the content of medical records, and has a broad, but not necessarily detailed, understanding of the healthcare process. Where a potential problem is identified, the conduct of disclosure should pass directly to the Claims Manager at the trust It is possible that a request for Pre-Action Disclosure may be the first indication that an incident has occurred. Increasingly though, the incident reporting system may have alerted the Trust to the event at an earlier time. This will be particularly true where high value cases are concerned. Indeed the proportion of serious events that are notified initially as claims is a key indicator of the efficiency of the local incident reporting system. A significant proportion initially notified as claims should be regarded as a warning sign Where a claim has not previously been reported as an incident, but it is now considered that it should have been, it should immediately be so reported in accordance with local procedures. The investigation as a claim, and as an incident, should then proceed as a single process. Note, however, that if any investigation has such a dual purpose the documents arising from it are likely to be discloseable in subsequent litigation see When a request for disclosure has been made without a claim, the opportunity to ask for the reasons which lie behind the request must be taken. Most Trusts incorporate this question into the documentation relating to the request when this is made by individuals or by solicitors seeking third party access. Of course, the records themselves may well contain sufficient information to enable an educated guess to be made as to the substance of a likely complaint or claim. It must, however, be remembered that the data subject has an absolute right to disclosure under s.7 of the 1998 Act, albeit with certain exceptions [see and 2.2.5] Trusts should ask the patient or representative to be as specific as possible. It is reasonable to seek clarification as to which records are required and whether the requestor is content to dispense with the copying of records which do not relate or Page 19 of 31

20 appear to relate to the matter under investigation. Once the nature of the request is reasonably clear, the Trust can consider whether to suggest that alternative means of resolving the issues might be appropriate, for example using the complaints procedure The Pre-Action Protocol for the Resolution of Clinical Disputes states that sufficient information should be provided to enable the Trust to determine which records are relevant and to identify whether further investigation is necessary. The Trust s obligations to disclose under the 1998 Act do not prevent requests under the Protocol by the Trust for further details, if insufficient information has been supplied in the application The Records of Deceased Patients are still governed by the Access to Health Records Act of Applications for copies should only be granted to the personal representatives of the estate or to someone having a claim arising out of the death. There are additional provisions for withholding disclosure, e.g. where the deceased specifically prohibited this or when information was provided in the expectation that it would not be disclosed to the applicant. 2.2 Making the disclosure The Claims Manager must ensure that all relevant originals of medical records, supplementary documents, specimens, recordings, charts etc are collated and retained until the conclusion of the claim. Of course, the files may be required for clinical purposes at any time so copies must be made. The Claims Manager s copy must be kept up to date in parallel with the original where continuing treatment is occurring Copying records in the course of a claim is not a trivial task. It requires skill and patience to ensure that all copies are clear, readable, and of good quality. Copies should be filed into an indexed and paginated bundle, not run off and kept as an undifferentiated pile. Good practice is to use a new medical records case file to create an exact replica of the original, but this should be clearly marked as such to avoid the possibility of it becoming confused with the original. Further indexation may be required where files are large and contain many admissions. Time taken at this stage will avoid wasted effort later on, and reduce the scope for claimant solicitors to generate further queries and requests for clarification. Additional work arising from poor or incomplete copying will certainly rebound in increased costs if the case is lost. Trusts with a significant workload should therefore ensure that the arrangements for copying are properly resourced so that adequate time is available to complete the task. Smaller trusts should consider an arrangement with a larger trust for complex cases To comply with the Data Protection Act, and the Pre-Action Protocol for the Resolution of Clinical Disputes, records must be provided within 40 days of the request and payment of the fee, at a cost not greater than that specified by the Data Protection Act (a maximum of 50, inclusive of copying, but plus postage, at present) The Data Protection Act also specifies a duty to consider if disclosure would:- Reveal information likely to cause serious harm to the physical or mental health of a patient or any other individual Page 20 of 31

21 Reveal information relating to or provided by an individual other than the patient (or health professional involved in the care of the patient) who could be identified, and has not given consent to the disclosure [e.g. in paediatric and psychiatric cases] Arrangements to assess records in accordance with this duty prior to disclosure should be in place. The Data Protection (Subject Access Modification) (Health) Order 2000 gives healthcare providers an exemption from s.7 disclosure obligations (data subject has absolute right to disclosure) provided that the criteria laid down in the Order are met. The Trust has a duty to take advice from the appropriate healthcare professional as defined in the Order before forming an opinion as to what, if anything, should be excluded from disclosure. It is essential that such a step is taken because harm can be caused if there is inappropriate disclosure At the same time clinicians should be asked for as much additional information as possible, including an analysis of the facts and an opinion as to allegations that may have been made, any adverse outcome or other irregular feature of the case Requests for disclosure of medical records may also be received under the Freedom of Information Act (FOIA). However, an individual s personal data are exempt from disclosure under this Act and requests for the subject s own data should be treated as approaches under the Data Protection Act. Requests for someone else s data under FOIA should be rejected if such disclosure would contravene any of the Data Protection Principles, which will almost invariably be the case. 3. The Preliminary Analysis 3.1 It is not necessary or desirable to investigate in detail every case in which records are requested. However in every case a preliminary analysis should be undertaken. This is a brief examination of the immediately available evidence which needs to be tested against the legal criteria of breach of duty and causation, to see if there is a realistic prospect of a claim being made. 3.2 Preliminary analysis should normally be completed within forty days of receipt of the request for disclosure, although it is recognised that, in some more complex cases, this target may prove difficult to meet. 3.3 Where an incident report or a complaint exists, the results of the investigation and, in the case of the latter, a formal response, will be available. These will usually furnish sufficient information to form a judgement as to the likelihood of a claim being made. 3.4 Where an incident report does not exist, the medical records should be scrutinised carefully. Discharge letters and summaries are particularly useful, and may often allude to complications that may represent untoward events, and the steps already taken to remedy them. It is important to obtain the views of the clinician in overall charge of the patient, and anyone else who, on the face of it, may have made an error. The information gathered should be measured against the Trust s risk rating or severity measurement criteria used for incident reporting. 3.5 Rating criteria are particularly useful where they have been designed to determine the depth, level, and scope of investigation and reporting within the Trust. As a minimum, the NHSLA expects Trusts to have in place a policy on investigation of incidents which will be used to determine the extent of any investigation which may be necessary. Page 21 of 31

22 3.6 A claim is defined as:- Allegations of clinical negligence and/or a demand for compensation made following an adverse clinical incident resulting in personal injury, or any clinical incident which carries significant litigation risk for the Trust. (See 4.1) This includes complaints leading to claims, notification of serious adverse events, incident reports generated by risk management processes any of which represent a significant litigation risk, requests for the disclosure of medical records. Defining an incident as a claim in the absence of a demand for compensation does NOT of itself imply that the NHSLA accepts that compensation will ultimately be paid. It simply means that a preliminary analysis should be carried out and the matter may need to be reported. 3.7 Trusts should investigate in detail where claims arise from:- An incident likely to generate substantial compensation Publicly or media-sensitive cases Obstetrics and Paediatrics Fatal incidents (including suicides of psychiatric patients and unexplained deaths) Misdiagnosis of life-threatening illness Serious professional misconduct This list is neither prescriptive nor exhaustive, and should include any cases where there are issues that directly affect the governance of the Trust. 3.8 The preliminary analysis should be structured and contain the following sub-headings:- Synopsis and Chronology Brief outline of main events including details of the main parties involved Care Management Problems All events where care deviated beyond acceptable limits Breach of Duty Causation Quantum Record those case management problems leading to harm, and make a direct response to specific allegations made in the request for records. Relates to harm that has directly led to loss of amenity pain and suffering. This may be difficult to determine in many cases without further investigation. This should be estimated by the claims manager on the basis of information known at the time, using the Judicial Studies Board Guidelines supplemented by advice from the NHSLA. It should represent a best guess of the Page 22 of 31

23 probable cost to the defendant at the time of resolution of the case and should incorporate figures for both claimant and defence legal costs. Claims staff at the NHSLA will be pleased to advise by telephone. Claimant s Funding Public funding (ex Legal Aid), private, CFA [see 8.2] etc. Risk Management Implications What can be learned for the future out of the events in question? Action plan The next steps recommended, e.g. obtaining expert opinion on causation, obtaining a condition and prognosis report etc. This section should include assessment of litigation risk as: Page 23 of 31 Low where there is no liability on the part of any party to the claim or the allegations of negligence are not causative of the outcome alleged (nominal 25% liability) Medium where the likelihood of the claimant s success is equivocal and there is a need for further investigation (nominal 50% liability) High where the claim is viewed as a likely settler or where there has already been an adverse expert opinion, for example in an incident investigation (nominal 75% liability) 3.9 In order to achieve this process, Trusts should have in place a structure which allows the Claims and Litigation Manager or person carrying out these functions to take the following steps:- Collection and collation of records including medical records, ancillary records if these are separated, incident reports, complaints files and any data held on computer files which are not routinely printed and stored in hard copy format. Discussions with lead clinicians who should be asked to provide reports on the clinical care received and to give an opinion on whether the care fell below an acceptable standard, leading to harm, and to respond in detail to all allegations made. The report should state clearly that it is made in response to actual or contemplated legal action. Identification of all relevant staff and their contact addresses, telephone numbers and GMC or other professional reference numbers. Following up of requests for information/assistance from the NHSLA. Any adverse incident reports should be filed separately from the clinical records. These reports are discloseable but only following a specific request. If they are filed within the body of the clinical records they become discloseable at the time of the initial request for records and will need to be disclosed at that stage.

24 3.10 It must be borne carefully in mind that reports which do NOT have as their sole or dominant purpose actual or prospective litigation are likely to be discloseable in law. Consequently, care must be taken by Claims Managers and others when compiling such reports to restrict themselves to facts and not express opinions which could rebound upon the Trust if litigation is commenced, so far as practically possible. 4. Reporting to the NHSLA 4.1 When a significant litigation risk has been established, and a realistic valuation of a possible claim has been made, the matter becomes reportable to the NHSLA. One of four possible situations may arise:- (a) Incidents reported (e.g. a major obstetric mishap), graded red/serious and investigated under the healthcare governance arrangements. Those revealing a possible breach of duty leading to a potential large value claim (i.e. damages of over 250,000) must be reported as soon as possible, usually before a claim is made. [4.2.1] (b) Claims arising from a complaints investigation where the response, on the facts, indicates that an admission of liability has been implied. [4.3.1] (c) Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value. [4.4.1] (d) Letters of claim as the first indication of any action. [4.5.1] In the first group of incidents (a) the requirements of healthcare governance are of primary importance in order to ensure the safety of patients. Such incidents should be thoroughly investigated, and will be reportable to the NPSA. Many are already reportable under other regionally managed channels. Investigations must be thorough, open and subject to scrutiny These requirements pre-empt action in contemplation of a claim. Documents in relation to such investigations will normally be disclosable because their primary purpose relates to governance, not the contemplation of legal action. This means that their content must be factual and avoid opinion and supposition as far as practically possible Insofar as the facts speak for themselves, their interpretation may amount to an admission of liability but this should not inhibit Trusts from dealing properly and effectively with the remedial action which may be indicated. It should not inhibit frank or open discussion with patients. The NHSLA advocates the giving of apologies and explanations where appropriate (see Circular 02/02) This group of claims should be reported in the same way as the third group [for format of reporting see 4.4.2] In the second group of claims (b) it is essential to send to the NHSLA the letter of complaint and any formal correspondence in response. Where the Independent Review procedure has been used, the report of the panel, and particularly any expert opinions that may have been given at the convening stage or during the review, will be required. Page 24 of 31

25 4.4.1 In the third group (c), where a significant litigation risk has been identified, the matter becomes reportable. First notification/reporting of the case must occur as soon as the preliminary analysis has been completed but not later than 2 months after the request for disclosure The following basic documentation should be sent in with all such cases: - Covering letter supported by the preliminary analysis A completed CNST or ELS claim report form Copies of the correspondence from the claimant s solicitor or the patient Copies of comments from clinical staff obtained as part of the preliminary analysis Where relevant, the report of investigation of any adverse incident, or the formal response by the Chief Executive to a letter of complaint The NHSLA will liaise with the Trust regarding further investigations. The NHSLA may conclude that panel solicitors should be instructed and will do so direct In the fourth group of cases (d) the first notification of a claim may arrive as the formal letter of claim. This may happen where for example the claimant has obtained sufficient medical records from a source beyond the Trust s control, e.g. the patient s General Practitioner, or by means of the patient s own approach to the Trust Under the terms of the Pre-Action Protocol for the Resolution of Clinical Disputes, a claimant is required to send a letter of claim containing a clear summary of the facts upon which the claim is based including the main allegations of negligence, the patient s injuries, present condition and prognosis, and financial loss. This can be sent at any time after the records have been disclosed, and may arrive before the preliminary analysis is complete. Letters of claim should be reported to the NHSLA within 24 hours of receipt The Letter of Claim indicates that the formal legal process has commenced and there will be three months to respond formally, provided that the letter is Protocolcompliant. Do not give any indication that you regard it as such, thereby enabling the NHSLA or panel solicitors to seek further time if need be. The Trust should acknowledge the letter, and identify that the NHSLA will be dealing with it. The NHSLA may in turn instruct a panel solicitor, if necessary, who will then contact the claimant s solicitor The NHSLA or panel solicitor will, where necessary, seek an extension of time especially when there has been no previous indication that a claim is being made. Insofar as the available evidence can be obtained, a formal response will be provided within the timescale. 5. Large Value Claims 5.1 Large value claims are those where the possible damages liability exceeds 250,000. By definition they will arise from serious clinical incidents which fall within the normal reporting guidelines in any Trust. The size of claim will usually result from the need for continuing care provisions to be made. There may also be dependent family members and loss of future income contributing to the size of the eventual settlement. Page 25 of 31

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