Claims Handling Policy and Procedure

Transcription

1 Claims Handling Policy and Procedure Version: 1.0 Ratified by: PCT Board Date ratified: September 2008 Name of originator/author: Jane Nash, Governance Manager Name of responsible committee/ individual: Risk Management Committee Date issued: December 2008 Review date: September 2010 Target audience: Document Status All staff Approved Policy Ref/Version GR002/

2 DOCUMENT CHANGE HISTORY Version Date Comments (i.e. viewed, or reviews, amended, approved by person or committee) 1 September 2008 Groups or individuals which have been consulted with in production of document: Director of Finance & Assurance Head of Performance Medical Director Director of Human Resources Company Secretary, Network Director for Cancer Network Director of Clinical Performance/Executive Nurse Business Manager, Provider Development Deputy Director of Finance HR Business Partner, Head of Unscheduled Care Document reference: Review date for approved document: Standards for Better Health: C7 PCT Objective: 20 NHSLA std and criterion: 5.4 September 2010 Page 2 of 39

3 Contents 1 Introduction 6 2 Purpose and Scope 6 3 Objectives 7 4 Definition of a Claim 8 5 Links to other Policies and Procedures 9 6 Duties and Responsibilities within the Organisation and Delegation Limits Trust Board Chief Executive Director of Finance and Assurance Claims Manager Governance Manager Operational Risk Group and Risk Management Committee Patient Safety Group Executive Directors/Service Managers/Line Managers Role of Clinicians/Specialist Advisers The Role of PCT Staff Duty of Confidentiality 12 7 PCT Responsibilities for Employment Related Claims 12 8 Identification of Claims and Potential Claims 12 9 General Procedure Following Notification of a Claim or Potential Claim Check that the Claim is the Responsibility of the PCT Check that the Limitation Period has not expired Check for Existing Information Open a Claim/Potential Claim File Process Requests for Disclosure 14 Page 3 of 39

4 9.6 Procedure when Proceedings are Served Without Prior Notice Reporting the Claim to the NHSLA Further Investigation Future Conduct of the Claim Supporting Mechanisms for Patients/Carers and Staff Conclusion of a Claim Timescales and Procedures for the Exchange of Information with Other Parties Further General Information Scheme Details Requests for Reports from Solicitors Claims with Particular Features Pre-Action Payments Media Interest Liaison with Third Parties NHS Litigation Authority Claimants Solicitors Coroner Investigation and Root Cause Analysis Monitoring Arrangements Claims Data Collection and Analysis Dissemination and Implementation Monitoring Compliance with, and the Effectiveness of this Document Internal Consultation, Approval and Ratification Process References 20 Page 4 of 39

5 Appendices Appendix A Preliminary Analysis of a Clinical Negligence Claim 21 Appendix B A. Disclosure 23 B. Flow Diagram for Records Requests 26 Appendix C A. Clinical Claims 27 B. LTPS Claims 28 C. Employment Law Related Claims 28 D. Property Expenses Scheme 29 E. Miscellaneous Claims 30 Appendix D Background Information 31 Appendix E Flow Diagram of What To Do In The Event Of A Claim 33 Appendix F Handling of all Employment Related Claims 34 Appendix G Contacts List 35 Equality Impact Assessment Tool 36 Governance Schedule 38 Page 5 of 39

6 1 Introduction Medway Primary Care Trust ( the PCT ) is committed to the timely and effective investigation, and response to any claim, which includes allegations of clinical negligence or personal injury (public and employers liabilities). This document sets out the procedure for the handling of all claims brought against the PCT. The Trust will follow the requirements of the National Health Service Litigation Authority (NHSLA) in the management of all claims. Claims monitoring is a fundamental tool of risk management, the aim of which is to collect information about claims which will help to facilitate wider organisational learning. The PCT will ensure that there are procedures and guidance for the handling of claims and that appropriate expertise and resources are available to the PCT to enable its responsibility to be effectively discharged. For the purposes of this policy, the Governance Manager will act as the Claims Manager for the Trust and will be referred to as the Claims Manager. 2 Purpose and Scope The purpose of this policy is to detail the structure and framework for the management of legal claims. The policy takes account of statutory requirements and guidance. It incorporates the requirements of the NHS Litigation Authority (NHSLA) Risk Management Standards for PCTs, Liabilities for Third Parties Scheme (LTPS), Property Expenses Scheme (PES) and Clinical Negligence Scheme for Trusts (CNST). These Schemes are administered by the NHS Litigation Authority. Wherever possible the NHSLA encourages appropriate tasks to be handled by the Trust rather than by referral to solicitors and in doing so the Trust adheres to the NHSLA Risk Management Standards for Primary Care Trusts. The timescales and reporting requirements reflect and underpin the timescales and requirements of the Civil Procedure Rules and the requirements of implementing a sound Clinical Governance regime. The NHSLA has national responsibility for overseeing all claims against NHS Trusts who are members of its Schemes, therefore it has final responsibility for the agreement of all claims for compensation arising from allegations of clinical negligence, third party liability or property expenses. The PCT however, remains the Defendant therefore any admissions of liability are to be a joint decision between the NHSLA and the PCT. The NHSLA will continue to advise Trusts in advance of conferences with Counsel and Court Hearings. The policy is based on Lord Woolf s reforms of the Civil Justice System ( Access to Justice ) and the implementation of the Pre-Action Protocol for the Resolution of Clinical Disputes for dealing with civil claims. The reforms invested responsibility on the Courts to run a timetable for resolving civil litigation, therefore it is imperative that the PCT undertakes all its investigation of claims as quickly and thoroughly as possible in preparation for litigation. Both incident reporting and complaints system, and Patient and Liaison Advocacy Services (PALS), are crucial to the good management of claims as Page 6 of 39

7 these may be the first sign of a potential claim. Employment related claims will be handled by the Director of Human Resources as outlined in Appendix G. 3 Objectives Medway PCT aims to manage risks identified from claims effectively and efficiently and create a positive and proactive risk management culture. In doing so it is committed to meeting the standards and time scales relating to claims as stipulated by the NHSLA and the Civil Procedure Rules. The PCT operates an open, honest and just policy. If, on investigation, a claim is found to be valid, then early settlement is encouraged subject to the approval of the NHSLA and the Director of Finance and Assurance and/or the Chief Executive. This procedure provides a comprehensive mechanism to bring claims to a speedy conclusion in the best interest of the claimant whether they are a patient, member of staff or a visitor to the PCT s premises. The claims handling policy is designed to reflect the requirements of the Civil Justice Reforms in the following ways: encouraging more pre-action contact with claimants or their representative; better and earlier exchange of information; improved and speedy thorough investigation; early settlement of meritorious claims without the need for expensive litigation; and court proceedings to run smoothly where there is a need for litigation The PCT is liable for the actions of its employees in the legitimate course of their employment. The PCT is committed to supporting its staff through litigation processes but will, where necessary; take disciplinary action in accordance with its disciplinary policy. The Trust is committed to a lessons learnt strategy and Root Cause Analysis techniques will be used to identify trends and risk issues highlighted by any claim to establish systems to avoid and/or reduce recurrence. Failure to comply with the Pre-Action Protocol can result in a court application being issued to secure the release of the relevant documentation leading to a cost implication for the PCT. The NHSLA will not reimburse any costs associated with the failure to comply with these protocols. In managing claims, the following general principles will apply: all claims will be recorded and given a unique reference number; all claims will be promptly notified to the relevant scheme within the NHSLA in accordance with that scheme s reporting guidelines; Claims investigation will be carried out by the relevant Service Manager, supported by the PCT Governance Department in liaison with Provider governance, and in line with the PCT s investigation procedures; Page 7 of 39

8 Root Cause Analysis will be carried out on claims as appropriate in accordance with the PCT s Serious Untoward Incident (SUI) Policy thereby facilitating the learning of lessons. This analysis will be carried out by the appointed service manager, and supported by Corporate and/or Provider Governance Service; Lessons learned from the claim/analysis will be shared within the PCT in order to reduce the risk of recurrence. 4 Definition of a Claim 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 incident which carries significant litigation risk for the PCT, Or A demand for compensation made following an adverse incident resulting in damage to property and/or personal injury. Defining an incident as a claim in the absence of a demand for compensation does not necessarily mean that compensation will be paid. It simply means that a preliminary analysis should be carried out and the matter may need to be reported to the NHSLA. There are five main types of claim that could be made against the Trust. These are: Clinical Negligence injury to a patient as a result of clinical treatment; Employer Liability injury to staff during the performance of their duties; Public Liability injury to a patient or any member of the public by virtue of that individual being on the Trust premises (excludes injuries arising from clinical treatment or damages to/loss of property); Staff Claims these are claims brought against the Trust by its employees and fall under Employment Law; Miscellaneous (including, but not limited to, damage to buildings from fire, flood or other events; damage to equipment or property belonging to the Trust; loss or theft of equipment or property belonging to the Trust). Page 8 of 39

9 5 Links to other Policies and Procedures The arrangements for effective claims handling require potential claims to be identified as early as possible to permit a thorough investigation before a Letter of Claim is received. The following policies and strategies are key documents: Risk Management Policy and Strategy: This document outlines the Board s, managers and staff responsibilities for risk and clinical governance. Serious Untoward Incidents (SUIs) Policy and Procedure: These policies set out reporting requirements and investigation guidance for reporting and learning from all types of adverse incidents and accidents. The Serious Untoward Incident and Near Miss Policy and Procedure also provide guidance on conducting Root Cause Analysis including who investigates, and when, and investigation methods and procedures. The Root Cause Analysis report will provide a factual account of the investigation with recommendations based on evidence and will be passed to the NHSLA where there is a significant litigation risk. Both policies also include guidance on reporting to external agencies such as the Health and Safety Executive, National Patient Safety Agency, Medicines & Healthcare Regulatory Products Agency (MHRA) and the Strategic Health Authority. The Policy and Procedure for Complaints Handling: This policy and procedure sets out the arrangements for the investigation and response to patient or patient related complaints in accordance with the Department of Health Guidance for Complaints Handling ensuring good practice to minimise the risk of a claim ensuing. Where there is a suggestion that a claim may arise, the Governance Facilitator, who is the named Complaints Manager, will contact the Governance Manager and/or the Company Secretary who will take a view on whether further detailed investigation is required and a decision on whether early notification to the NHSLA should be made. Where a complaint includes or is followed by allegations of clinical negligence and/or a demand for compensation, or is identified as carrying significant litigation risk, the complaint should be discussed with the Claims Manager and/or the Company Secretary to ascertain whether further clinical/legal advice is required. Concerns and issues that are not patient or patient related (i.e. grievances, whistle blowing, bullying and harassment etc.) are dealt with in accordance with Human Resources (HR) policies covering these areas. An Organisation-wide Policy for the Investigation of Incidents, Complaints and Claims Policy: This policy details the processes and procedures for the investigation of Complaints, Claims and Incidents including analysis of data, feedback and the joined up approach to reporting. Page 9 of 39

10 The Procedure for Handling Access Requests for Health Records Policy: This policy details the arrangements for providing access to health records in accordance with the Data Protection Act 1998 and Access to Health Records Act Such requests should be directed to the Information Governance Facilitator. The Records Management Policy and Strategy: This policy sets out arrangements for the storage, archiving, retrieval and destruction of records and the minimum retention periods. 6 Duties and Responsibilities within the Organisation and Delegation Limits 6.1 Trust Board The PCT Board will have overall responsibility for promoting a climate of openness and ensuring that (through the Audit Committee, and where appropriate the Clinical Governance (COG) Committee, and other appropriate PCT Committees, the PCT Board is informed and assured that the claims management system within the organisation is working effectively. RMC will take responsibility for establishing the process for claims and for ensuring its operation. 6.2 Chief Executive The Chief Executive has ultimate responsibility within the PCT for the handling of claims and ensuring they are dealt with effectively and efficiently. 6.3 Director of Finance and Assurance The Director of Finance and Assurance is the designated Board member with responsibility for compliance with the claims policy and procedure. The Director of Finance and Assurance is responsible for reporting associated risks to the Risk Management Committee and the Board. Details of claims will be reported quarterly. 6.4 Claims Manager The Claims Manager has overall responsibility for the effective management and monitoring of claims. In this capacity the officer will be responsible for ensuring that the policies and procedures for the effective and efficient management of claims in the PCT are conducted with due regard to ratified policies and procedures. 6.5 Governance Manager The Governance Manager is the nominated PCT Claims Manager. This officer will receive and consider all claims made against the PCT in the first instance. All claims against the PCT will be logged by the Governance Administrator, notified to the Director of Finance and the relevant Trust Executive Director for the department/service involved. The Claims Manager has overall responsibility for the conduct and Page 10 of 39

11 control of all claims and claims documentation and for keeping the Director of Finance fully aware of progress on claims. 6.6 Operational Risk Group and Risk Management Committee The Operational Risk Group is responsible for assessing the risks to the Trust of all outstanding claims and for ensuring that significant risks (i.e. those graded high on the Directorate risk matrix) are included in the Risk Register. This is achieved through reviewing the Directorate Risk Registers and populating the Corporate Risk Register. This Group reports directly to the Risk Management Committee (RMC). The Risk Management Committee is attended by Executive and non Executive Directors. The Corporate Risk Register will therefore include all risks in relation to this area (through their inclusion on Directorate Risk Registers). The Risk Management Committee reviews claims, incidents, complaints and Patient Advice Liaison Services (PALS) enquiries in order to provide an overview of organisational learning. This Committee has the responsibility for ensuring that the PCT operates a closed loop process with regard to lessons learnt from claims. This includes effective implementation of lessons learnt. 6.7 The Patient Safety Group reviews lessons learnt from claims and reports to the Quality Board and hence to the RMC. 6.8 Executive Directors/Service Managers/Line Managers Executive Directors/Service Managers/Line Managers will act as the investigating managers. They will assist in gathering the information requested by the NHSLA and forward their findings to the Governance Department. Where requested, they will provide an assessment on the care and assistance provided by staff in their service area and whether this was in accordance with the PCT s policies, protocols, procedures and training, or with National Clinical Guidelines and whether the care provided fell below an acceptable standard. These managers are also responsible for the Root Cause Analysis of a claim or potential claim and the production, actioning and monitoring of any action plans required. Line Managers are responsible for notifying the appropriate Executive Director of any claim. The appointed investigator will be responsible for maintaining comprehensive records of the investigation and for ensuring that an investigation report is produced at the end of the investigation which identifies lessons learnt and associated action plans. 6.9 Role of Clinicians/Specialist Advisers The PCT will seek and utilise appropriate clinical and specialist advice, in both the management and resolution of claims, through the established processes for doing so through the Medical Director and/or Director of Clinical Performance/Executive Nurse. Page 11 of 39

12 6.10 The Role of PCT Staff Any member of PCT staff in receipt of a letter of claim, incident or complaint that could potentially result in a claim, or any correspondence from a court or solicitors in respect of a claim must notify the Governance Manager immediately Duty of Confidentiality In accordance with the PCT Code of Conduct, all staff involved in the claims process must observe appropriate confidentiality. No documents will be disclosed to any party without appropriate consent. Any disclosure of patient records will be undertaken through the Procedure for Handling Access requests for Health Records Policy and Procedures and in accordance with the Data Protection Act PCT Responsibilities for Employment Related Claims Employment related claims are the responsibility of the Director of Human Resources as set out in Appendix G. Where the litigation risk is not covered by the NHSLA indemnity schemes or by commercial insurance, the conduct of the claim will be managed in accordance with the delegation of authority in the Trust s Scheme of Delegation and the Policy on Losses, Special Payments, Condemnation and Disposals. Such losses are subject to limits delegated by the Department of Health in the Manual for Accounts, and the process for handling losses and special payments is detailed in Addendum 2 of the Standing Financial Instructions. 8. Identification of Claims and Potential Claims Claims may be identified as a result of an incident report, complaint, and request for access to records, employment tribunal, letter from claimant or solicitor or any other information that might indicate a claim is being made. For example: Where an untoward incident has occurred and it is apparent from the investigation/root cause analysis that there has been a possible breach of duty of care. Where there has been an allegation of professional misconduct. Where the preliminary analysis indicates that a claim may be pursued in respect of a request for access to health records. Where the response to a complaint implies an acceptance of liability of a potential claim. Page 12 of 39

13 9 General Procedure Following Notification of a Claim or Potential Claim All staff must take urgent action on receiving a letter of claim or potential claim as tight timescales are enforced and non compliance will lead to the PCT being penalised financially, and may also lead to the PCT not being able to defend the claim. Staff should immediately advise the following once aware of any claim or potential claim: The Company Secretary the relevant Executive Director The Governance Manager The notification (actual or potential) whether by letter or otherwise must be passed to the Governance Manager or Corporate Affairs Administrator immediately without any acknowledgement of the claim as the timetable for dealing with such claims begins to run from the date of acknowledgement. The Corporate Affairs Administrator will log all requests for records as shown in Appendix B (i) and B (ii) Flow Diagrams for Records Requests. This officer will also log all claims and advise the Company Secretary and Claims Manager to take the following action: 9.1 Check that the Claim is the Responsibility of the PCT Where a claim is not the responsibility of the PCT, a letter will be sent to the claimant stating why it is not the responsibility of the PCT and indicating who is responsible if this is known. 9.2 Check that the Limitation Period has not Expired For a negligence claim, which includes a claim for personal injury, this is 3 years from the date of the incident or from the date of knowledge, if later. However, Section 33 of the Limitation Act 1980 gives courts the discretion to extend the limitation period in some circumstances. Time does not run for those under a disability. Minors can bring a claim in their own right after attaining the age of majority for incidents that occurred while they are minors and time will only start to run from that birthday. Even if the limitation period has expired, the PCT will not ignore the claim. An analysis of the claim should be undertaken in case Limitation period is extended. 9.3 Check for Existing Information Check the Potential Legal Claims files and complaints files to ascertain whether this has been flagged as a potential claim. If no potential claim file or complaints file is in existence, check if there has been a Patient Liaison and Advocacy Service (PALS) contact regarding the matter that is the subject of a claim. Establish whether an incident form was created in relation to the subject matter. Obtain all original documentation at this stage, mark as not for destruction and keep in a secure and safe place. Page 13 of 39

14 9.4 Open a Claim/Potential Claim File All correspondence is to be filed in chronological order, with the most recent on top. A copy of all outgoing post should be retained on file in chronological order. File notes should be made of all discussions about a claim. 9.5 Process Requests for Disclosure Ensure that the Pre-action Protocol for the Resolution of Clinical Disputes is followed including responding to Letters of Claim, Court Proceedings and Part 36 Offers. The aim of the pre-action protocol is to ensure that all parties to an action have the relevant information needed to reach settlement wherever possible. Disclosure is an important part of the pre-action protocol. The rules around disclosure are complex and these are set out in detail in Appendix C. 9.6 Procedure when Proceedings are Served Without Prior Notice Where proceedings (i.e. Claim Form and Particulars of Claim) are served without prior notice, the NHSLA should be telephoned upon receipt in order to agree immediate steps. All documentation should be sent to the NHSLA immediately so that the NHSLA can take the appropriate procedural steps. This would usually include copies of the Complaints File, Incident Form and Witness Statements if these are available. This list is not exhaustive and a variety of documentation may be requested by the NHSLA, depending upon the nature of the claim. Once the NHSLA has been notified, the usual investigations should be carried out as quickly as possible by the Investigation Manager (e.g., records and comments from clinicians obtained, check for a complaint file/incident report). All future correspondence from the Claimant must be passed to the NHSLA or appointed solicitor without acknowledgement to the claimant. 9.7 Reporting the Claim to the NHSLA The NHSLA has issued detailed reporting guidelines that must be followed for all potential claims. (See Appendix D for details on specific types of claims). These procedures summarise the main points, but reference should also be made to the detailed guidelines on the NHSLA website. 9.8 Further Investigation If a claim has been reported to the NHSLA and it is accepted, an NHSLA Claims Manager or Case Manager will be allocated. This officer will decide whether a solicitor will be instructed and inform the PCT what further action or investigation is required. Page 14 of 39

15 9.9 Future Conduct of the Claim The PCT, Governance Manager, NHSLA Case Manager and the nominated solicitors will work closely to progress the claim. Where there is the potential for media interest or a case going to court, the Communications Director, the Chairman and the Chief Executive will be advised. All decisions on the handling of the case rests with the NHSLA, although the PCT will be given the opportunity to comment on major decisions as the PCT remains the legal Defendant. As a Defendant, an authorised officer at the PCT must sign any documents that are to be submitted to the courts Supporting Mechanisms for Patients/Carers and Staff Although, the NHS claims procedure is now designed to be as quick as possible it can still take considerable time before a claim goes to trial. During this period and at any point from the initial incident, it is important for the PCT to offer staff any support that may be required (for example, counselling, assistance with how to write statements and how to provide evidence in court). The PCT will ensure that the member of staff is treated with sensitivity, informed of progress, and have sight of any response letter. The relevant Executive Director will look to identify a member of staff to support those involved in a claim. Further details of the PCT policy on supporting staff can be found in the Being Open policy Conclusion of a Claim A claim can conclude in a number of ways: the Claimant or the PCT succeeds at trial the claim is settled before trial the claim is withdrawn/discontinued Once a claim has been concluded, the NHSLA will provide the PCT with a closure document giving a breakdown of Defence costs, Claimant s costs and damages. The PCT should advise all staff involved in the case of the outcome. Procedures for handling specific types of claims are set out in Appendix D. 10 Timescales and Procedures for the Exchange of Information with Other Parties The Pre-action Protocol requires: records to be disclosed within 40 days or within 20 days if the records have been accessed within 20 days of the request, in accordance with the Data Protection Act a letter of claim to be acknowledged within 14 days. a detailed and binding Letter of Response to be given within 3 months. disclosure statements certifying that the search for documents has been Page 15 of 39

16 carried out to the best of the signatory s ability. Signed Statements of Truth to be provided for all documents submitted in connection with the claim including the Defence and Witness statements. The PCT will work within the remit of the Pre-Action Protocols for dealing with civil claims as above. Statements of Truth may be signed by the following, with the exception of witness statements, which must be signed and dated on each page by the individual making the statement. the Chief Executive the Director of Finance & Assurance all Executive Directors the Company Secretary the Governance Manager. 11. Further General Information 11.1 Scheme Details Scheme reporting details can be found in Appendix D Requests for Reports from Solicitors A solicitor may approach a healthcare professional to provide a report about a patient or member of staff in one of two circumstances: where there is a claim against the PCT where there is a claim against a third party. Requests for reports can relate to patients, or be about a member of staff, if it is a member of staff who is making a claim. If the report concerns a claim against the PCT, the claimant s solicitors should not approach any healthcare professional or manager directly. Such requests, by a claimant s solicitors, should be referred directly to the Governance Manager. If the claim is not against the PCT, then a report can be requested directly from the relevant healthcare professional or manager. The request from the solicitors must include signed authorisation from the person whom the report is about. The healthcare professional/manager may prepare the report but must always be aware that the report could be used in subsequent court proceedings and will be disclosed to the claimant and other parties. Advice should be sought from the individual s professional body, e.g. the Medical Defence Union, before releasing the report. The duty of the person preparing the report is to the Court. The contents of the report must be factual and in chronological order. The report should be dated, signed on each page and contain a declaration at the end. Staff can seek guidance from their line manager and the appropriate Executive Director or their Defence Organisation. Page 16 of 39

17 11.3 Claims with Particular Features The NHSLA must be specifically notified of a potential claim where any of the following features arise: MP involvement media attention human rights issues multi-party actions multiple claims from a single cause novel, contentious or repercussive claims 11.4 Pre-Action Payments Occasionally, the PCT will receive an indication that a person seeks compensation without them having instructed solicitors. This is often at the end of the investigation of a complaint. In such circumstances, it is often sensible to attempt settlement by way of pre-action payment. The matter should be discussed with the Director of Finance and Assurance and the NHSLA advised following the appropriate scheme. This limits costs from escalating once solicitors are instructed. If it appears that the PCT is likely to be found liable and the value of the claim is thought to be less than 2,000, then the Director of Finance will discuss the offers with the relevant Executive Director. Such payments will not be recoverable under CNST unless prior approval is received from the NHSLA Media Interest At any stage, a claim or potential claim may generate media interest. The Company Secretary and Communications Manager must be made aware of any such interest or potential interest. All claims that are going to court should be notified to the Director of Finance and draft statements prepared. Draft press statements will normally be agreed with the Chief Executive. Where Court Hearings are likely to generate media interest, the NHSLA will agree with the Trust beforehand a press release or position to be adopted. 12 Liaison with Third Parties Where appropriate, the Claims Manager will liaise with the appropriate directors/senior managers and Company Secretary to determine if external agencies should be involved in the claim investigation process, for example: where suspicious circumstances are suspected, the Company Secretary and the Director of Service will advise if the Police should be informed. Page 17 of 39

18 Where Health and Safety issues arise, and the matter has not previously been reported, the Company Secretary will advise if the matter should be reported to the Health and Safety Executive. The Company Secretary will advise if the National Patient Safety Agency need to be involved NHS Litigation Authority The Corporate Affairs Administrator is responsible for reporting claims and, liaising with the NHSLA as appropriate Claimants The Claims Manager is responsible for drafting detailed letters of response to Claimants and their representatives with due consideration of the advice given by the NHSLA, and as appropriate Solicitors The Claims Manager is responsible for acknowledging Letters of Claim and liaising with the Claimant s solicitor as appropriate Coroner The Company Secretary and Governance Manager are responsible for liaising with the Coroner as appropriate. 13 Investigation and Root Cause Analysis All claims will be investigated under the PCT Root Cause Analysis process. Details can be found in the Investigation of Complaints, Claims and Incidents Policy. The Investigation Manager will be appointed by the Director who is responsible for the area in which the initial event occurred. The Investigation Manager will then identify officers to be interviewed and set the timescale for the investigation, including the production of a report and action plan. These timescales must reflect the requirements of this policy and be communicated to all relevant parties. It may become necessary to involve external agencies such as enforcing agencies, external stakeholders, external advisors etc. either to be involved in the investigation or for information. Third party investigation could be required if there is insufficient expertise or test equipment within the organisation, political considerations, the need to eliminate bias etc. The decision to involve external organisations will be taken by the Director responsible for the area in which the initial event occurred. 14 Monitoring Arrangements The Governance Department, specifically the Governance Manager will receive regular progress reports on active claims from appointed solicitors and the NHSLA. Page 18 of 39

19 The Governance Manager will advise the Company Secretary of new and completed claims together with progress on outstanding claims bi-monthly for inclusion in the reports to the Risk Management Committee and the Board. Executive Directors/Service Managers are responsible for monitoring any associated action plans and disseminating any learning points across the Trust. Anonymised lessons learnt will be submitted to the Patient Safety Group together with lessons learnt from incidents and complaints to identify trends and learning. 15 Claims Data Collection and Analysis As detailed previously in this policy, the Risk Management Committee has responsibility for claims analysis, the Claims Manager will ensure that twice a year the results of the analysis will be reported to the Board and incorporated into the complaints board report. This analysis will be both qualitative and quantitative in nature, discussing any trends that have been identified within claims. Reports will expand from the purely statistical and should document trends/themes/causal factors and any subsequent changes in practice. This analysis will be undertaken in the context of complaints analysis to provide an overview for the PCT. More information regarding this can be found in the Policy on Investigation of Complaints, Claims and Incidents. 16 Dissemination and Implementation This policy will be available on the PCT website and will be cascaded through the PCT by the Directors. Appendix F will be widely disseminated to front line departments as a reference tool. Relevant officers, including the Directors and service managers will receive one to one training provided by the Governance team regarding the duties contained within this policy and training will be undertaken through team meetings. Progress reports regarding claims training will be submitted to the Fire and Health and Safety working group on an annual basis. 17 Monitoring Compliance with and the Effectiveness of this Document Benchmarking will be undertaken by the Governance Manager using national data available from the NHSLA comparative data. This information will be reported to the Fire, Health and Safety Committee on an annual basis. 18 Internal Consultation, Approval and Ratification Process This policy has been considered by the Risk Management Committee, and approved and ratified by the PCT Board. Page 19 of 39

20 19 References Department for Constitutional Affairs, Pre-action Protocols for the Resolution of Clinical Disputes 1998/183 [online]. London: The Stationary Office. Available from: Department for Constitutional Affairs, Pre-Action Protocol for Personal Injury Claims [online]. London: The Stationary Office. Available from Department for Constitutional Affairs, 1998 Pre-Action Protocol for Personal Injury Claims [online]. London: The Stationary Office. Available from The National Health Service Litigation Authority Framework Document. Available from (Publications - Claims publications) Clinical negligence reporting guidelines fourth edition January Available from (Publications - Claims publications) Non-clinical claims reporting guidelines Available from (Publications - Claims publications) NHSLA Disclosure List. Available from (Publications - Claims publications Page 20 of 39

21 Appendices Appendix A PRELIMINARY ANALYSIS OF A CLINICAL NEGLIGENCE CLAIM When to do a preliminary analysis A Preliminary analysis must be carried out on receipt of all actual or potential claims. As a guide, in respect of potential claims, it is suggested that PCTs complete a preliminary analysis in the following circumstances: on receiving requests for access to records that indicate a potential claim following incidents or complaints where it is likely that a claim may ensue High value or publicly sensitive cases. Preliminary Analysis must be started and when possible completed within the forty days allowed for the disclosure of records under the Pre-Action Protocol. In many cases it will take two calendar months but the provision of copy records within the prescribed period must not be delayed. Once all relevant records (to include the complaints file, adverse incident reports and previous investigations) have been collated, a report should be prepared in all cases. In order to complete the preliminary analysis, it will be necessary to discuss the potential claim with the relevant healthcare professionals involved in the care/treatment of the claimant. What to include in a Preliminary Analysis: The preliminary analysis should be structured and chronological. The report must state whether it has been prepared in response to an actual or potential claim, and should include the following: Synopsis and Chronology - A 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 - Record those care management problems leading to harm and make a direct response to specific allegations made in the request for records. Causation - Harm that has directly led to loss of amenity, pain, and suffering. This may be difficult to determine in many cases without further investigation. Quantum - This should be estimated by the Governance Manager on the basis of information known at the time, using the Judicial Studies Board Guidelines Book. It should represent the probable cost to the Defendant at the time of resolution of the case and should incorporate figures for both the Claimant s and the Defendant s legal costs. Page 21 of 39

22 Appendices Claimant s Funding - How the claim is being funded if known. Risk Management - 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 Low, Medium and High. When preparing a preliminary analysis, it must be borne 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 when compiling such reports to restrict themselves to facts and not express opinions. Page 22 of 39

23 Appendices Appendix B A. DISCLOSURE Applications for disclosure: An application for disclosure under the Data Protection Act 1998 may be made by: the data subject in the case of a child, the person with parental responsibility In the case of patients who lack the necessary mental capacity to request their own records, a person who has been appointed by a Court, i.e. the Official Solicitor to manage their affairs. Permission to Disclose from an appropriate health professional Before Medical records are disclosed to any party, permission to disclose must be obtained from an appropriate clinician, in accordance with the Data Protection Act 1998 because: The clinician will be able to identify at this stage any information held within the notes which he/she feels should not be disclosed (the serious harm exemption ). To put the clinician(s) on notice that there is a potential claim against the PCT in connection with a procedure carried out by him/her. To obtain early comments in relation to the treatment of the Claimant. The identity of the lead clinician is not always apparent from the information provided by the Claimant's solicitor therefore it is advisable to double check. Often there will be information in the Letter Before Action/Letter of Claim or Authorisation to Disclose which details when the alleged negligence took place. From this, the history sheets or correspondence within the records should enable the correct clinician, or at least the correct department, to be identified. Locating Staff The Service/Department Managers are able to locate a member of staff's personnel file. For professional staff, the personnel file should contain these details including a registration number and possibly an address. Whilst it is possible that the member of staff may still be living at the address given, the registration body should be able to provide an up-to-date address if necessary. If the Manager is unable to provide a registration number, there are 3 options: The registration body may be able to identify the person from just their name. The clinician in charge of the particular department, or any clinicians who have already made comments, may know how to contact the missing clinician. Human resources may have details as part of the employment checks process. Page 23 of 39

24 Appendices If there is a need to contact other staff and there is no up-to-date address on the personnel file, the first point of contact should be the department in which the person used to work to see if anyone can provide information, which may assist. Non-health records All other records identifying a patient are also accessible under the Data Protection Act, such as complaints documentation and internal inquiry reports. Unlike in the case of health records, there is no formal requirement to consult an appropriate health professional and the serious harm exemption does not apply. However, if there is a possibility of such serious harm, legal advice should be sought through the Governance Department. Page 24 of 39

25 Appendices B. (I) Flow Diagram for Records Requests Request For Record Gov. Admin Logs Pre-action letter 3rd Party Request I. G. Facilitator (log) Gov. Manager Service Manager (support) Begins Investigation ASAP 40 days and prepare statement based on information available Liaison with Department (see flow chart below) Gov. Manager Verified Department Copies - Records (pot-valid claim) (not valid claim) I.G Facilitator Check if appropriate to go out. Report to NHSLA Corp. Admin Letter to Solicitor Sent Out (40 days) Page 25 of 39

26 Appendices B. (II) Departmental Flow Diagram for Medical Records Requests REQUEST RECEIVED BY PCT IG Facilitator Liaison with Department Department copies records Department creates invoice for payment Payment received? NO NO IG Facilitator to confirm records are complete, accurate, appropriate YES IG Facilitator to dispatch information and close request YES Page 26 of 39

27 Appendices Appendix C A. CLINICAL CLAIMS Requests for Access to Health Records General Guidelines: A request for access to medical records may indicate that no litigation is contemplated. Usually however, the first indication of a potential clinical claim is a request for access to Health Records (i.e., a subject access request under the Data Protection Act 1998 or (where a patient has died) a request under the Access to Health Records Act 1991, indicating that litigation is contemplated, accompanied by a pre-action letter or a Letter of Claim. In these circumstances the Manager of the service must send a copy of the request to the Governance Administrator, so that a potential claims/or claims file can be set up and details entered on the claims database. All requests for disclosure must contain an authority to disclose and a clear list of the records to which the patient/claimant requires access. This must be signed by the patient/claimant or by their lawful representative if they are a child (i.e. under 18), under a mental disability or deceased. If the records are to be disclosed to any other parties, this must be clearly stated. For deceased patients, a copy of the Will or Letters of Administration should be requested before disclosure can be made. If there is either no signed authorisation to disclose or an inadequate authorisation to disclose, sufficient authorisation must be obtained before the records are released. For further information see the Data Subject Access Requests Policy. Requests for access to Medical Records indicating that no litigation is contemplated: Take the normal steps to complete the request in accordance with the Data Subject Access Request Policy. Requests for access to Medical Records indicating that litigation against the PCT is contemplated: When the request for access to medical records comes directly from the Claimant's solicitor, it should be on an Application On Behalf of a Patient for Hospital Medical Records For Use When Court Proceedings are Contemplated together with the patient's signed Authority to disclose the records to their solicitors and the relevant fee where applicable. In order to comply with the Pre-Action Protocol, copies of discloseable records must be provided within 40 days of the request and within 20 days if the records have been accessed 20 days prior to receipt of the request. Page 27 of 39

28 Appendices The following steps should be taken: Requests should be logged by the Governance Administrator and passed to the Information Governance Facilitator. Information Governance Facilitator will request the copies of records from the relevant Manager and send the fee to the relevant department. The relevant department manager will arrange for the original records to be photocopied (single sided A4), and check the copies against the originals to ensure that they have been copied correctly. Obtain permission from an appropriate health professional prior to disclosure (see Appendix C). If permission is granted by an appropriate health professional, send out copies of the medical records to the Claimant/Claimant s solicitor and notify the Information Governance Facilitator that this has been achieved. Only copies of records should be sent out. Due to the nature of the information, if any records are to be posted they should be sent by Recorded Delivery to ensure confidentiality and safety of the records. Reporting to the NHSLA Reportable claims must be reported to the NHSLA within two months of the request for disclosure, on the basis of the information to hand at the time, irrespective of whether the preliminary analysis and concluding report are finalised. The following documents should be sent to the NHSLA by the Corporate Affairs Administrator. Covering letter supported by the preliminary analysis. CNST Claim Report Form. Copies of correspondence from the patient or the patient s solicitor. Copies of any Adverse Incident Report Form, investigation or formal letter of response by the Chief Executive to a letter of complaint. Copies of comments obtained from staff as part of the preliminary analysis. B. LTPS CLAIMS (Employers Liability and Public Liability claims) These are covered by the LTPS part of Risk Pooling Scheme (RPST). A copy of the relevant records should be obtained from the Service Manager (e.g. accident reports book entry; letter of complaint; risk management report), and should be retained on file. The relevant Director and Director of Finance and Assurance should be informed of the claim and kept advised of progress. Page 28 of 39

29 Appendices Reporting an LTPS claim/potential With effect from 1 st August 2006 all new LTPS claims reported to the NHS Litigation Authority must include the following documentation: NHSLA LTPS Report Form Letter of Claim All documents relating to the type of claim being reported. Sample lists taken from the Pre-Action Protocol for Personal Injury Claims are enclosed in the form of a new NHSLA Disclosure List. A completed NHSLA Disclosure List must accompany all reported claims, indicating which documents are enclosed by means of a tick in the appropriate box. The declaration must be signed by an Executive Director of the organisation e.g. Chief Executive or Finance Director. Upon receipt of a Letter of Claim members should promptly identify the type of claim and complete the NHSLA Disclosure List having identified the relevant documents. For every Workplace claim the first page of the NHSLA Disclosure List must be completed, together with the appropriate page relating to the specific type of Workplace claim. Claims will not be accepted into the Scheme without the necessary documents. Where no List and documents are attached the NHSLA will hold the claim pending receipt of these papers. If papers are not forthcoming within one month of the first receipt of papers the NHS Litigation Authority reserve the right to reject the claim. C. Employment Law related claims These claims are not reportable to the NHSLA and will be dealt with by the PCT as outlined in Appendix G. D. Property Expenses Scheme (PES) Damage to Trust buildings or theft of Trust property is covered by PES. The Estates and Facilities Manager will receive, assess and notify property claims covered by the NHSLA s Property Expenses Scheme (PES) in conjunction with the relevant Service Managers and the Governance Manager as detailed in the NHSLA PES manual. The following claims will be reported under this Scheme: All cases where the potential will exceed the excess ( 20,000 buildings, 5,000 plant, machinery, contents) Cases within 20% of the excess, regardless of whether the Trust wishes the NHSLA to handle the claim on a sub-excess basis. Cases where the potential develops to the extent that the excess will be breached. Page 29 of 39

30 Appendices The Estates and Facilities Manager will work with the NHSLA claims handler and the Claims Inspector, appointed by the NHSLA, in investigating the claim and providing appropriate information and evidence as required. E. Miscellaneous Claims Occasionally the PCT will receive a claim that is outside the main categories. In such cases advice will be sought from Trust solicitors as appropriate and determine a course of action. Page 30 of 39

31 Appendices Appendix D BACKGROUND INFORMATION National Health Service Litigation Authority (NHSLA): The National Health Service Litigation Authority (the Authority) is a Special Health Authority set up under Section 11 of the NHS Act Its date of commencement was 21 st November The principal task of the Authority is to administer schemes set up under Section 21 of the National Health Service and Community Care Act This enables the Secretary of State to set up one or more schemes to help NHS bodies pool the costs of any loss of or damage to property and liabilities to third parties for loss, damage or injury arising out of the carrying out of their functions. The NHSLA administers four schemes to handle negligence claims against NHS bodies. Three cover clinical claims, while the fourth covers non-clinical incidents, such as accidental injury to visitors or staff. A fifth scheme provides first party insurance-type cover for NHS bodies property and expenses. The Clinical Negligence Scheme for Trusts (CNST) is a voluntary membership scheme, to which all NHS Trusts, Foundation Trusts and Primary Care Trusts (PCTs) in England currently belong. It covers liabilities for alleged clinical negligence where the original incident occurred on or after 1 st April The costs of meeting these claims are met through members contributions on a pay-as-you-go basis. The Existing Liabilities Scheme (ELS) is centrally funded by the Department of Health and covers clinical claims against NHS bodies where the incident took place before April The Ex-RHAs Scheme covers outstanding clinical claims made against the former Regional Health Authorities, which were abolished in Like the ELS it is centrally funded by the Department of Health. This is the only NHSLA scheme where the NHSLA is the legal defendant in any action. The Liabilities to Third Parties Scheme (LTPS) is a scheme relating to any liability to any third party, staff where the original incident occurred on or after 1 April The Property Expenses Scheme (PES) is a scheme relating to any expenses incurred from any loss or damage to property where the original loss occurred on or after 1 st April The Liabilities to Third Parties Scheme and the Property Expenses Scheme are known collectively as the Risk Pooling Schemes for Trusts (RPST). They are voluntary membership schemes covering non-clinical claims and costs are met through members contributions. The PCT is a member of CNST, LTPS and PES. Page 31 of 39

32 Appendices Notification of all potential and actual claims should be sent to: Napier House, 24 High Holborn, London, WC1V 6AZ NHSLA authorisation is required before admissions may be made and compensation offered. If a claim is not correctly notified, the NHSLA will not reimburse any money paid out by the PCT and payments outside the scheme may lead to criticism by auditors. Det Norske Veritas Ltd provides third party insurance for LTPS claims. Their website contains useful information. Civil Procedure Rules (CPR) 1998: These Rules came into force in April 1999, and are a procedural code with the overriding objective of dealing with cases justly and efficiently. This includes, so far as practicable, ensuring that the parties are on an equal footing, saving expense, and dealing with cases in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party. The timetable for management of cases is set and controlled by the Courts. Pre-Action Protocols (PAP): These are intended to be an important aspect of the Civil Procedure Rules It is a base to resolve clinical disputes before legal proceedings are issued. The Clinical Negligence Pre-Action Protocol for the resolution of Clinical Disputes must be followed in CNST cases, and the Personal Injury Pre-Action Protocol must be followed in LTPS cases. Personal Injury Claims: These can be made by members of staff, visitors, patients or contractors who sustain an injury from trips, slips, falls, lifting etc. due to the PCTs failure to provide a safe environment. Privileged/non privileged documents: Privileged documents are documents generated after confirmation that litigation is contemplated. These documents are not discloseable by law. Non-privileged documents are those created prior to confirmation of litigation, e.g. complaints correspondence, any statements prepared at that time and those documents created for governance and risk management purposes. Page 32 of 39

33 Appendix E FLOW DIAGRAM OF WHAT TO DO IN EVENT OF A CLAIM Staff member becomes aware of a claim or potential claim (e.g., receipt of request for access to Health Records with litigation intended) and informs line manager Staff notifies the Governance Manager who notifies the relevant Executive Director. The Governance Manager checks the claim is the responsibility of the PCT and if not a letter is sent to the originator. Governance Administrator logs all claims/potential claims on the database A claims (potential) claims file is opened Governance Manager contacts service lead to obtain documentation gathered (e.g. copy of the incident file, health records etc). Root cause analysis undertaken by the Service Manager Corporate Affairs Administrator notifies the claim to the NHSLA and seeks advice of the NHSLA. NHSLA manage the claim unless otherwise specified in the Procedures for Claims Handling Corporate Affairs Administrator submits documentation to NHLSA in line with the NHSLA s Reporting Guidelines. Executive Director/Service Manager liaises & ensures appropriate support is provided to interested parties (such as staff involved). Communicate the key stages reached. Service Manager to provide regular reports to Governance Manager who reports bi-monthly to the Company Secretary Included in reports to the Risk Management Committee and Board. Service Managers to ensure all staff involved in the case are supported through process and advised of the outcome and ensure that any learning from a claim is implemented, where applicable. Page 33 of 39

34 Appendix F Handling of all employment related claims. Introduction All employment related claims are handled through the Human Resources Department, with the Director of Human Resources taking overall responsibility for the handling of these claims. Such claims include all claims made via employment tribunal procedures (e.g. unfair dismissal, constructive dismissal, wrongful dismissal, discrimination, harassment, etc.) and any employment related claims presented to any other courts of law or judicial procedures (e.g. disclosure of information demands under the Data Protection Act). Employment related claims may be initiated by current members of staff, staff who have ceased to be employed by the PCT as well as people who have never been employed by the PCT (e.g. a claim of unlawful discrimination during the recruitment process). This does not include personal injury claims which are subject to arrangements set out in the main procedure. Procedure to follow on receipt of an employment related claim Any member of staff in receipt of such a claim should inform the Director of Human Resources as soon as possible that a claim has been received. At the same time, the documentation should be sent to Director of Human Resources for action. If a member of staff, on receipt of a claim, is unsure whether it is employment related or not, they should contact the Governance Manager for advice. The Company Secretary remains responsible for reporting risks to the Director of Finance, the Risk Management Committee and the Board as per other claims. As such the Director of Human Resources should ensure the Company Secretary is up to date on the claim, estimates and timescales. Settling employment related claims Agreement to settle a claim is not necessarily an acknowledgement of wrong doing. Consideration of whether to proceed with litigation or to settle a particular case will be based on an assessment of the risks and costs associated with either route. Authority to approve the settling of any claims rests with the Remuneration and Terms of Service Committee and the Audit Committee. Page 34 of 39

35 Appendix G CONTACTS LIST Governance Manager, Tel: Corporate Affairs Administrator, Tel: Address for all: 7/8 Ambley Green Bailey Drive Gillingham Business Park Gillingham Kent ME8 0NJ NHSLA Contact and postal address: Brendan Nevin Team Leader Napier House 24 High Holborn London WC1V 6AZ. Tel: Page 35 of 39

36 Claims Handling Policy and Procedure Equality Impact Assessment Tool Name of Policy/Strategy Aim of Policy/Strategy Name of Lead Manager 1. Does the policy/strategy exclude particular equality target groups listed? 2. Does the policy/strategy affect any of the equality target groups listed disproportionately? (Please provide evidence for your answer) 3. Are there barriers which could inhibit access to the benefits of the policy/ Strategy? e.g. communication/ information, physical access, location, sensitivity etc 4. Does the policy/ Strategy gives different groups the same choices as everybody else? 5. What evidence has been used to make these judgements? Claims Handling Policy and Procedure To detail the PCT process for handling claims Company Secretary Impact Assessment Race No Disability Gender Age Sexuality Religion & Belief Race Disability Gender Age Sexuality Religion & Belief No Yes No No No No No No No No No No No Demographic data and other statistics, including census findings Recent research findings including studies of deprivation Results of recent consultations and surveys Page 36 of 39

37 Claims Handling Policy and Procedure Policy based on legal requirements as recommended by NHSLA 6. How is the effect of the policy/strategy on different equality target groups going to be monitored? Results of ethnic monitoring data and any equalities data from the local authority/joint services Comparisons between similar functions/policies Analysis of PALS, complaints and public enquiries information Analysis of audit reports and reviews Race NA Disability NA Gender NA Age NA Sexuality Religion & Belief NA NA Please specify for each equality group 7. What level of impact will this policy/strategy have? Race Disability Gender Age Sexuality Religion & Belief Comments No impact. GOVERNANCE SCHEDULE Page 37 of 39

38 Claims Handling Policy and Procedure (to be completed in all cases for new and revised policies, procedures, protocols, guidance and patient information leaflets) Title of Document Purpose of this document and specific risk reduction covered Policy/procedure etc. category Working group/committee consulted with: Working group/committee approving this document: Committee ratifying this document What other groups/positions have been consulted with Policy/procedure etc. required by Other organisations covered by this document: Impact on other policies, procedures, protocols, guidance, patient leaflet Detail staff groups this document applies to: Claims Handling Policy and procedure To detail the PCT process for handling claims. Litigation risk. Risk Executive Team Risk Management Committee Risk Management Committee NHSLA NHSLA None Claims Investigation policy. All staff Detail any resource/training requirements of document. Detail how and where these will be implemented and by whom: Legal advice obtained (if YES give comments) Equality Impact Assessments 14. Completed (Assessment forms available from HR dept.) 15. Public Involvement NO 16. Detail governance checks made and name of person responsible for proof reading the document One to one training with relevant staff (see section on dissemination) and induction training delivered by Governance team YES NHSLA requirements incorporated YES N Davies Page 38 of 39

39 Claims Handling Policy and Procedure 17. Document sign off by 18. Date signed off Risk Management Committee To be retained with the documents master copy by the Governance Office Page 39 of 39