1 DATE APPROVED: 21 February 2012 APPROVED BY Executive Management Board IMPLEMENTATION DATE: 21 February 2012 REVIEW DATE: February 2014 LEAD DIRECTOR: Director of Nursing & Quality IMPACT ASSESSMENT STATEMENT: No adverse impact on Equality or Diversity Reference Number: GOV - Policy 009 (Version 2)
2 Page 2 of 23 Change Control: Document Number GOV-POLICY-009 Document Claims Handling Policy Version Two Owner Director of Nursing & Quality Distribution list All Issue Date TBC Next Review Date July 2014 File Reference PO-009 Author Claims and Legal Manager Change History: Date Change Authorised by July 08 Sent for approval Integrated Governance & Performance Committee Sept 08 Issued Mar 09 Document re-numbered from GOV-CG-005 Oct 10 Change in directorate Document Control Officer 06 Feb 12 Sent for review at TU Reviewed and agreed Policy group 8 Feb 12 Sent to HS&R Committee Agreed for escalation to EMB for agreement 21 Feb 12 Sent to EMB for final approval Approved for general release
3 Page 3 of 23 CONTENTS 1 Purpose of this Document Introduction Purpose General Issues Surrounding Claims Handling Clinical Negligence Scheme for Trusts (CNST) Liabilities to Third Party Scheme (LTPS) Property Expenses Scheme (PES) Duties Within the Trust Links With Risk and Complaints Management Internal Consultation, Approval and Ratification Process Liaison With Third Parties Investigation and Root Cause Analysis Claims Data Collection and Analysis Learning From Experience Equality Impact Assessment Review and Revision Arrangements Including Version Control Dissemination and Implementation Document Control Including Archiving and Retrieval Arrangements Monitoring Compliance with and the Effectiveness of the Claims Handling Policy Conclusion REFERENCES Appendix
4 Page 4 of 23 1 Purpose of this Document 1.1 This document provides a framework for effective claims management including the procedure for handling clinical negligence, employee and public liability personal injury claims and property expenses claims. 1.2 Claims monitoring is a fundamental tool of risk management, the aim of which is to collect information about claims that will help to facilitate wider organisational learning. Therefore this policy links with other corporate documents including incident and complaint investigation policies and procedures. 2 Introduction 2.1 One of West Midlands Ambulance Service NHS Trusts (hereafter called the Trust) strategic objectives is to maintain and develop safe, high quality patient services in a suitable environment. This will be achieved through the development and maintenance of effective systems that apply the principles of sound clinical and corporate governance. 2.2 The investigation and response to clinical negligence, employer and public liability personal injury claims is an important measure of the Trust s commitment to achieving its objectives. Changes to clinical practice or service delivery as a result of claims promote learning from the experience of patients, relatives and visitors to ensure the continued improvements in healthcare and services provided by the Trust. 2.3 Claims investigations are one aspect of risk management, the aim of which is to collect information that will help to facilitate wider organisational learning. 3 Purpose 3.1 The purpose of this document is to detail the organisation, managers and staff responsibility to the management and investigation of clinical negligence, employer and public liability personal injury claims and property expenses claims in accordance with statutory requirements and NHS guidance, including the NHS Litigation Authority (NHSLA) Risk Management Standards. 3.2 The document details the procedure to be followed by staff in undertaking claims investigations, identifying actions to avoid recurrence of the matter(s) that gave rise to the claim and monitoring the implementation and progress of change to influence the Trust s risk management process.
5 Page 5 of The aim of the policy is to set out in detail the actions required by the Trust and individuals in responding to clinical negligence claims relating to a patient s healthcare or employer and public personal injury claims. The policy applies to all employees and covers all services that are the responsibility of the Trust. 3.4 The document provides detailed guidance on how claims are to be dealt with by the Trust including the involvement of the NHSLA, solicitors, claimants and the coroner. Claims will be investigated and reported in accordance with the NHSLA claims reporting guidelines for the Clinical Negligence Scheme (CNST) the Liabilities to Third Parties Scheme (LTPS) and the Property Expenses Scheme (PES). 4 General Issues Surrounding Claims Handling 4.1 NHSLA Schemes relevant to the Trust The Trust is a member of the NHSLA Clinical Negligence Scheme for Trusts (CNST), and the Risk Pooling Scheme for Trusts (RPST) which covers non-clinical claims and is responsible for the Liabilities to Third Parties Scheme (LTPS) and the Property Expenses Scheme (PES). All clinical negligence, employer and public liability personal injury claims and property expenses claims will be handled in accordance with the relevant NHSLA guidelines Contributions to the Schemes are calculated on an annual basis using actuarial techniques. Discounts are available for meeting the relevant risk management standards. LTPS and PES claims are subject to excesses with the Trust responsible for handling and funding below-excess claims. The excess for LTPS claims is 10,000 for Employers Liability (EL) Claims, 3,000 for Public Liability (PL) Claims and 20,000 for PES claims (buildings and contents). CNST claims are not subject to an excess. 4.2 Definition of a Claim A claim is an allegation of negligence and/or demand for compensation that is made following an adverse incident resulting in personal injury or any clinical incident that carries a significant litigation risk for the Trust or damage or loss to property or contents. A claim is any demand, however made, for monetary compensation in respect of a qualifying liability. It will usually, but not always be a Letter before Action, a Claim Form or a Summons. 4.3 Who Can Make a Claim A claim can be made by the person directly affected by the matter that is the subject of the claim or their next-of-kin if the person is deceased, is a minor or lacks the mental capacity
6 Page 6 of 23 to purse the action directly. The person/next-of-kin is known as the claimant and they can either represent themselves as a litigant in person or instruct solicitors to act on their behalf. 4.4 Triggers for Making a Claim This could include: Complaints leading to claims. Notification of a serious adverse event/serious untoward incident. Adverse incident reports generated under the Trust s risk management procedures that indicate a significant litigation risk. Requests for access to medical records either by the patient or their representative. Concerns raised regarding care and treatment following a Coroner s inquest. Theft of contents or physical damage to buildings e.g. fire. 4.5 Involvement of External Agencies At any stage of an investigation the Trust may identify that an external agency needs to be involved in the process, or that a separate investigation is undertaken into any wider issues or concerns identified. These circumstances could include the involvement of the Strategic Health Authority, Primary Care Trusts, Police, Coroner, Child Protection Agency, Social Services, Professional Bodies or the Health and Safety Executive. This list is not exhaustive and consideration of involving specific external organisations should be made on the basis of the individual case. The decision to involve an external agency should be made by the Chief Executive or a nominated deputy on the evidence of the facts available at that time. 4.6 Timescales and Procedures for the Exchange of Information With Other Parties Timescales for the actions to be taken and exchange of relevant information with claimants will be undertaken in accordance with the Civil Procedure Rules in relation to the Pre-action Protocols for Personal Injury Claims and Professional Negligence. It is important for everyone involved in a claim (claimants, Trust staff, and solicitors for both parties) that claims are resolved as quickly as possible. The aim of this policy is to reflect the requirements of the justice reforms in the following ways: Encourage more pre-action contact with claimants. Better and earlier exchange of information.
7 Page 7 of 23 Improved investigation. Earlier settlement without the need for expensive litigation. Court proceedings to run smoothly where there is a need for litigation Specific detail of timescales in respect of requirements to disclose information is provided under the relevant section below CNST section 4, LTPS section 5 and PES section 6. However the main timescales that must be adhered to in the pre-action stage are that: 4.7 Confidentiality Information requested under the Data Protection Act 1998 must be disclosed within 40 days. Letters of Claim must be acknowledged within 14 days for CNST claims and 21 days for LTPS claims. Letters of Response to a Letter of Claim must be served within 3 months The principles of the Data Protection Act 1998 regarding the disclosure of information will be applied at all times. The claimant s written consent for disclosure of personal data including medical records, personal files and occupational health records is required prior to any information being provided to their legal representatives Disclosure of information to the Trust s legal representatives, NHSLA and staff involved in the investigation will also comply with the Data Protection Act. Sensitive information will be sent via recorded delivery to a named individual with a receipt required where original documents have been provided. 4.8 Support Mechanisms for Claimants It is recognised that pursuing a claim can be a difficult and anxious time for claimants. The majority of claimants instruct solicitors to act on their behalf in respect of the claim and therefore they will be supported by them throughout the investigation process. Where the claimant is acting as a litigant in person they should be kept informed of the progress of the investigation If the claim relates to allegations of clinical negligence the claimant should be given the contact details for AvMA (action against medical accidents) who provide confidential advice to people contemplating a claim against the NHS. Helpline number or Where the claim relates to allegations of clinical negligence and the claimant is continuing to receive care and treatment at the Trust, the clinician/health professional responsible for the claimant s care should ensure that the claimant s action
8 Page 8 of 23 does not affect their ongoing clinical management Where the claim relates to an employee liability claim the employee can self refer to the Occupational Health Department or their Manager can refer them if necessary. The employee can also seek advice and support from their Trade Union or Professional Organisation. 4.9 Support Mechanisms for Staff It is recognised that being the subject of a claim or being involved in an investigation into allegations of negligence can be a difficult and anxious time for staff. Managers should ensure that staff are supported during the course of the investigation, including referral to the Occupational Health Department if necessary, in order to avoid undue stress and a defensive response to the matters under investigation. The Claims and Legal Manager and the Governance Co-ordinator will keep staff informed of the progress of the investigation Statements from Staff 4.10 Staff providing statements should ensure their statement includes: Their personal details i.e. name, position and area of work and experience. As much detail as is relevant in response to the allegations of negligence, with dates, names, places and witnesses. Clinical negligence claims should make reference to the documentation in the medical records and any relevant policies and procedures. The signature of the person making the statement and the date signed Unless witness statements are prepared for the primary purpose of litigation then they will be disclosable to the claimant in any subsequent legal proceedings Procedure for Accessing Legal Advice This procedure applies to legal advice that is not related to a specific claim, for example matters relating to a patient s mental capacity to consent to treatment, emergency court orders, police requests for access to records and general legal advice relating to the application or development of Trust policies and procedures. This list is not exhaustive In Hours (Monday to Friday 09:00 17:00 excluding Bank Holidays) Staff should discuss their requirements with the appropriate Line Manager. If it is determined that legal advice is required they should in the first instance contact the Claims and Legal
9 Page 9 of 23 Manager who will determine the level of response required. If necessary the Claims and Legal Manager will contact the Trust s solicitors for advice and report back to the Line Manager. If appropriate the Director of Nursing and Quality may authorise the Line Manager to contact the Trust s solicitors directly Out of Hours (Evenings, Weekends and bank Holidays) The Director of Nursing and Quality or nominated deputy should be contacted via a message left with the Emergency Operations Centre. If necessary the Director of Nursing and Quality will contact the Trust s solicitors via the emergency service for advice. The Claims and Legal Manager will keep a log of all emergency calls made to the Trust s solicitors 4.15 Ex-gratia Payments Ex-gratia settlements offered by the Trust are by definition not payments based upon legal liability and are therefore not recoverable under CNST or RPST. Settlement can only be agreed by the Director of Finance, Planning & Performance Management and the Chief Executive Director, or nominated deputies Risk Management Issues High standards of documentation and record keeping are essential in health records to ensure that the details of the care and treatment provided are available in the event of a claim being made Staff must be aware that when they are asked to provide reports, statements or comments in respect of an incident or complaint investigation that these are potentially disclosable in the event of a claim being received 4.17 Media Interest 4.18 Apologies At any stage a claim (or potential claim) may generate media interest. The Director of Nursing and Quality or the Claims and Legal Manager will liaise with the Associate Director of Communications to agree the information that can be given to the media. The NHSLA must approve any draft press statement relating to claims already notified to them It is both natural and desirable for those involved in treatment which produces and adverse result, for whatever reason, to sympathise with the patient or the patient s relatives and to express sorrow or regret at the outcome. Such expressions of regret would not normally constitute an admission of
10 Page 10 of 23 liability, either in part or in full. The Compensation Act 2006 s.2 states that An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty Explanations Patients and their relatives increasingly ask for detailed explanations of what led to an adverse outcome. Care needs to be taken in the dissemination of explanations to avoid future litigation risks however the provision of information constitutes good practice provided that facts as opposed to opinions form the basis of the explanation. 5 Clinical Negligence Scheme for Trusts (CNST) 5.1 The Clinical Negligence Scheme for Trusts (CNST) covers all clinical claims where the allegedly negligent incident took place on or after 1 April Clinical Negligence claims will be managed in accordance with the CNST Reporting Guidelines (4 th Ed, January 2007). Appendix 1 CNST Summary Reporting Structure 5.2 Disclosure of Records Requests for disclosure of records are usually made under the subject access provisions of the Data Protection Act 1998 (DPA) s.7. The Nursing and Quality Directorate review all patient and solicitors requests for access to records 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 To comply with the DPA 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 no greater than that specified by the DPA Requests for disclosure of medical records may also be received under the Freedom of Information Act (FOIA) (2000). However an individual s personal data is exempt from disclosure under this Act and requests for the subject s own data should be treated under the DPA. Requests for someone else s data under FOIA should be rejected if such disclosure would contravene any of the DPA principles. Further advice on disclosure of medical records can be obtained from the Regional Head of Information. (Refer to the procedure for Release of Patient Identifiable Information). 5.3 Preliminary Analysis
11 Page 11 of If a potential clinical negligence claim is identified as a result of any of the reasons listed above a preliminary analysis must be undertaken to determine if a detailed investigation is required. The preliminary investigation is a brief examination of the immediately available evidence that 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. The preliminary analysis should normally be completed within 40 days of receipt of the request for disclosure Detailed investigations should be undertaken where claims or potential claims arise from but not restricted to: An incident likely to generate substantial compensation. Publicity 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 The Preliminary Analysis should contain the following: Synopsis and Chronology Care Management Problems Breach of Duty Causation Quantum Claimant s Funding Risk Management Implications Action Plan Brief outline of main events including details of the main parties involved. All events where care deviated beyond acceptable limits. 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 the information known at the time. It should represent a best guess of the probable cost to the defendant at the time of resolution of the case and should incorporate figures for both claimant and defence legal costs. Identify whether the claim is funded privately, by a conditional fee agreement (CFA) or public funding. What can be learned for the future out of the events in question? Next steps e.g. obtain expert opinion, obtain an in-house report. This section should also include an assessment of the litigation risk: Low where there is no liability on the part of any party to the claim or the allegations of
12 Page 12 of 23 negligence are not causative of the outcome alleged. Medium where the likelihood of the claimant s success is equivocal and further investigation is needed. High where the claim is viewed as likely to settle or where there is already an adverse expert opinion. 5.4 Reporting to the NHSLA 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. There are four situations when this will occur: Serious Untoward Incidents that have been investigated under the Trust s Incident Reporting process that have revealed a possible breach of duty leading to a potential large value claim i.e. damages greater than 250,000 (e.g. major obstetric mishap) must be reported as soon as possible. This will usually be before a claim is made Claims arising from a complaint investigation where the response, on the facts, indicates that an admission of liability has been implied Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value Letters of Claim as the first indication of any action. These must be reported to the NHSLA within 24 hours of receipt The following documentation should be sent to the NHSLA on first notification of a claim that meets the criteria for referral to the NHSLA: Covering letter supported by the preliminary analysis. 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 the 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 and where necessary instruct the panel solicitors. The NHSLA will issue a closure document at the end of each claim that will include a breakdown between damages, claimant and defence costs. 6 Liabilities to Third Party Scheme (LTPS) 6.1 The Liabilities to Third Party Scheme (LTPS) was effective from 1 April
13 Page 13 of for claims relating to employer and public liability incidents from this date onwards. Employers liability covers all incidents relating to employees from straightforward slips and trips to serious manual handling, bullying and stress claims. The scheme also covers public and products liability claims from personal injury claims sustained by visitors to Trust premises to claims arising from breaches in the Human Rights Act (1998), Data Protection Act (1998) and the Defective Premises Act (1972). With effect from 1 August 2006 all claims reported to the NHSLA must include the following documentation: Letter of Claim NHSLA Disclosure List All documents relating to the type of claim being reported 6.2 NHSLA Disclosure List The Disclosure List must be signed by the Director of Nursing and Quality, or their Deputy, or an Executive Director as authorised by the Chief Executive The first page of the Disclosure List must be completed for every workplace claim 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. If the papers are not sent to the NHSLA within one month of the first receipt by the NHSLA of notification of the claim the NHSLA reserve the right to reject the claim under the Scheme and the Trust will be responsible for the financial costs of the claim. 6.3 LTPS Claims Reporting Guidelines The guidelines apply to the management, investigation and reporting of all categories of claim under LTPS, and in particular to Employee (EL) and Public (PL) liability personal injury claims. 6.4 When to Notify a Claim to the NHSLA The Trust is required to report claims upon receipt of a formal Letter of Claim where the total cost will approach or exceed the applicable excess ( 10,000 EL, 3,000 PL). The excess applies to the total value of the claim, i.e. damages plus costs The NHSLA offers a handling service for claims falling within the excess subject to a handling fee, which currently stands at 200 per case All reportable EL claims must be accompanied by the NHSLA Disclosure list and all of the documents on the standard disclosure list applicable to the particular type of claim Potential claims should also be reported where there has been a serious adverse incident that has a significant
14 Page 14 of 23 litigation risk prior to an actual demand for compensation being made. These cases may be the result of an incident report/investigation, formal complaint or other matters identified through the risk management process The NHSLA also requires early notification where the case involves: Fatal incidents Human Rights issues Media attention MP involvement Multi-party actions Multiple claims from a single cause Novel, contentious or repercussive claims 6.5 Action in Response to a Notification of a Claim for Compensation The Personal Injury Pre-action Protocol requires the claimant 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 Receipt of a Letter of Claim indicates that the legal process has commenced. The Trust has 3 months in which to respond formally to the allegations of negligence. The Letter of Claim must be acknowledged within 21 days confirming that the matter has been reported to the NHSLA Upon notification of a claim the Legal Services Department will: Acknowledge receipt of the Letter of Claim. Report the claim to the NHSLA in accordance with the LTPS guidelines. Collect and collate records and any other information relating to the incident and the person(s) involved, including incident reports and complaint files. Identify all relevant personnel and the contact details The Claims Department will liaise with the NHSLA and the Trust s solicitors throughout the investigation. Any risk management recommendations identified as a result of the investigation will be reported by the Claims and Legal Manager via the Audit Committee. 7 Property Expenses Scheme (PES) 7.1 The Property Expenses Scheme (PES) was effective from 1 April 1999 for claims relating to incidents from this date onwards. PES provides cover for damage to buildings e.g. fire and theft or damage to contents,
15 Page 15 of Claims for damage, loss or destruction of Trust property will be investigated and reported to the NHSLA in accordance with the Property Expenses Scheme. PES claims should be reported to the Claims and Legal Manager bearing in mind the scheme excess limit of 20,000 for both building and contents. Any incident that could result in a claim should be reported to the Property Manager as soon as possible after a loss has occurred. 8 Duties Within the Trust 8.1 The Trust will have an appointed individual or individuals to manage, handle and co-ordinate clinical negligence, liability and property claims. The individual(s) will have sufficient expertise and knowledge to be able to handle the day-to-day management of claims. In some circumstances it may be appropriate to involve the Trust s solicitors for advice on potential or actual claims against the organisation Trust Board: The Trust Board will receive an annual claims report. The report will provide brief details of claims received during the year, the outcome of closed claims and details of risk management issues with the associated changes in practice. This will assure the Board that the claims management system is working effectively. 8.2 Committees with overarching responsibility for claims management Audit Committee: The Audit Committee is chaired by a Non-Executive Director and is a sub committee of the Trust Board. The committee receives a report relating to clinical and non-clinical claims Learning Review Group: The Learning Review Group as part of its Terms of Reference will consider learning from claims and trend analysis. Reports will be provided to relevant Committees as determined by the Group Chief Executive: The Chief Executive is required to ensure that the Trust has a clear policy for handling clinical negligence and personal injury claims approved by the Board which conforms to the standards detailed in the directive EL(96)11 Clinical Negligence and Personal Injury Litigation: Claims Handling and the NHS Litigation Authority standards. The Chief Executive is ultimately responsible for ensuring that all claims are dealt with effectively and efficiently Designated Board Member: The Director of Nursing and Quality has designated responsibility for the overall management of the Claims Department and the handling of clinical negligence, employer and public liability personal injury claims The Director of Finance, Planning & Performance
16 Page 16 of 23 Management has designated responsibility for property matters and the handling of any PES claims The Director of Nursing and Quality, or their Deputy, or an Executive Director as authorised by the Chief Executive.is the authorised officer for signing Court documents including List of Documents for Disclosure, Counter Schedules and Defences Claims and Legal Manager The Claims and Legal Manager is accountable for ensuring that clinical negligence, employer and public liability personal injury claims have been fully investigated in accordance with the policy and national guidelines Role of clinicians/specialist advisers: Employees have a duty to assist fully in any investigation in relation to claims against the Trust. The Claims and Legal Manager will work closely with employees to ensure that they have access to the information necessary for them to respond to the allegations. Employees will respond to any request from the Claims Department for information or assistance in an investigation in a timely manner. Employees will attend case conferences and meetings with legal representatives as necessary Regional Head of Estates: The Regional Head of Estates is accountable for ensuring that PES claims have been fully investigated in accordance with the policy and national guidelines. 9 Links With Risk and Complaints Management 9.1 Some claims will already have been reported and investigated under the Trust s incident investigation process and/or the complaints policy and procedure. Information from these investigations will be included in the preliminary investigations into the claim. 9.2 If a complaint investigation is ongoing at the time the claim is received the complainant should be advised that in accordance with NHS (Complaints) Amendment Regulations 2006 the complaints procedure ceases at this point. 9.3 If the incident investigation is ongoing this will continue and form part of the preliminary investigations for the claim. 10 Internal Consultation, Approval and Ratification Process 10.1 The Claims Handling Policy and Procedure will be approved in accordance with the Policy and Procedure Development, Approval, Implementation, Review and Document Control version 3 (July 2007) The Audit Committee will receive the document for consultation and approval The Learning Review Group will receive the document for ratification.
17 Page 17 of The Executive Membership Board will receive the document for final approval. 11 Liaison With Third Parties 11.1 NHS Litigation Authority 11.2 Claimants 11.3 Solicitors 11.4 Coroner The role of the NHSLA is to negotiate outcomes including, where appropriate, instruction of solicitors and full financial responsibility for CNST claims. The Trust remains the legal defendant and therefore no admissions of liability will be made by the NHSLA without the Trust s agreement The Claims and Legal Manager and Governance Coordinator will liaise closely with the NHSLA Claims Handlers throughout the investigation of a claim The majority of claimants instruct solicitors to act on their behalf in respect of their claim against the Trust and therefore there is little direct contact with the claimant in these cases. At the conclusion of a claim or where settlement has been agreed it is on occasions a recommendation or a requisite of the settlement that a formal letter of apology is sent by the Chief Executive. The Claims and Legal Manager will ensure that this occurs In cases where the claimant is a Litigant in Person and therefore pursuing the claim by themselves without legal support the Claims and Legal Manager or the Governance Co-ordinatorwill keep the claimant informed of the progress of the investigation and liaise with them for any information that is required to enable the claim to be investigated The Claims and Legal Manager or the Governance Coordinator will liaise closely with the solicitor that has conduct of the claim throughout the investigation If the Trust wishes to involve solicitors before reporting a claim a firm that is on the NHSLA Panel List should be considered. The cost of this work is not reimbursable under the CNST or RPST Schemes The Claims and Legal Manager or the Governance Coordinator will liaise closely with the Coroner and Coroner s Officers in preparing for any inquest in accordance with the Procedure for Release of Patient Identifiable Information, Version 2 1 October The Claims and Legal Manager
18 Page 18 of 23 will consider whether formal legal representation is required at an inquest if there have been or may be allegations of negligence in respect of treatment or services provided by the Trust. 12 Investigation and Root Cause Analysis 12.1 The causes of claims can be complex, sometimes ill-defines and be the result of the interaction of a number of factors. A fair and thorough investigation of the claim to determine root causes and actions to avoid recurrence are a fundamental part of risk management and good business practice. The outcome of a good investigation will increase opportunities for learning and lead to improvements in systems and practices. 13 Claims Data Collection and Analysis Reports to the Board and Relevant Committees CNST/RPST Claims The Claims and Legal Manager will provide quarterly reports to the Audit Committee relating to clinical negligence claims. The quantitative information will include: The number of claims received, including whether previously investigated as a clinical incident or complaint The number of claims closed by outcome (settled/withdrawn) The number of claims received per site The qualitative information will include: Details of the allegations of negligence for new and closed claims Changes to practice/service as a result of claims The Audit Committee will inform the Board on the performance of clinical negligence claims in order to: Monitor arrangements for local claims handling Consider trends in claims Consider any lessons that can be learned from claims, particularly for service improvement 13.2 Property Expenses Claims The number of claims received by the Trust that are covered by PES is very small. The Director of Finance, Planning and Performance Management will provide an exception report to the Audit Committee The Audit Committee will inform the Board on the
19 Page 19 of 23 performance of property expenses claims in order to: Monitor arrangements for local claims handling Consider trends in claims Consider any lessons that can be learned from claims, particularly for service improvement 13.3 Annual Reports The Board will reports on clinical negligence, employee and public liability personal injury claims through the Trust Annual Report. The annual reports will be published on the Trust website. These reports will exclude patient and claimant identifiable details to ensure confidentiality. 14 Learning From Experience 14.1 Claims are one way in which the Trust can learn from the experiences of patients, employees and visitors. Changes to service and practice will be identified as a result of the claims investigation and will be reported to the Directorate(s) and individual clinicians as appropriate. The Directorate will provide a report to the Audit Committee and Serious Case Review Group on any changes to practice or service and these will be included in the annual claims report N.B. Due to the length of time that can have passed between the incident that is the subject of the claim and the claim being notified, often several years, it is sometimes not possible or relevant to identify any risk management recommendations. 15 Equality Impact Assessment 15.1 The implementation of the Claims Handling Policy and Procedure has been assessed against the Equality Impact Assessment Tool. The Trust s policy and procedure for the management of claims does not affect one group less of more favourably than another, however it is recognised that the sensitivity of claims does not exclude the possibility that some individuals may feel unable to access the service. All efforts are taken by the Claims Department to advise potential claimants of the process including providing details of external organisations that will be able to assist them. 16 Review and Revision Arrangements Including Version Control Process for Reviewing the Claims Handling Policy and Procedure 16.1 The Claims Handling Policy and Procedure will be reviewed three years from the date of approval, unless any statutory or national guidance is introduced in the intervening period that requires revision of the documents before the planned review.
20 Page 20 of All reviews and revisions to this document will be approved in accordance with the process described in Changes to this document will be recorded and monitored in accordance with the Policy for Procedural Documents Version 6 17 Dissemination and Implementation 17.1 Dissemination of the Claims Handling Policy and Procedure The Claims Handling Policy and Procedure will be accessible via the Trust s intranet Implementation of the Claims Handling Policy and Procedure The Claims and Legal Manager will be responsible for implementing the Policy and Procedure through training via individual and group sessions. 18 Document Control Including Archiving and Retrieval Arrangements 18.1 The control of this document will be in accordance with the Policy for Procedural Documents Version 6 19 Monitoring Compliance with and the Effectiveness of the Claims Handling Policy 19.1 The Claims Handling Policy and Procedure will be assessed against the NHSLA Risk Management Standard 2. Evidence will be gathered to provide assurance to the Trust Board of compliance with this standard Compliance with the policy will be monitored via the assurance reporting framework and will include information on the number and type of claims and changes to service or practice. 20 Conclusion 20.1 The way in which the Trust responds to claims is a reflection on its attitude to the quality of services to patients, employees and visitors A consistent, positive and timely response to all claims will lead to improved relations with service users, a positive image for the Trust, and increased confidence amongst staff and patients West Midlands Ambulance Service NHS Trust is committed to constantly reviewing and improving the services it provides.
21 Page 21 of 23 REFERENCES Action Against Medical Accidents Department of Health Ministry of Justice National Health Service Litigation Authority Office of Public Sector Information NHSLA Claims Handling Policy Template, 2007 NHSLA LTPS Claims Reporting Guidelines, revised October 2007 NHSLA Disclosure List NHSLA Clinical Negligence Reporting Guidelines, 4 th Edition, January 2007 NHSLA Framework Document Civil Procedure Rules 2007 NHS Redress Act 2006 NHS (Complaints) Amendment Regulations 2006 Supporting Staff, Improving Services [SI2006 No2084] Compensation Act 2006 Memorandum of understanding between the NHS, Police and the Health & Safety Executive for the co-ordination of investigations, July 2004 NHS (Complaints) Regulations 2004 Freedom of Information Act 2000 Department for Constitutional Affairs: Pre-action Protocol for Personal Injury Claims 1998 Department for Constitutional Affairs: Pre-action Protocols for the Resolution of Clinical Disputes 1998/183 Human Rights Act 1998 Data Protection Act 1998 Clinical Negligence and Personal Injury Litigation: Claims Handling [EL(96)11] Defective Premises Act 1972
22 Page 22 of 23 ASSOCIATED DOCUMENTATION Complaints Policy and Procedure, December 2007 Mental Capacity Act 2005 Summary Guidance for Staff, January 2008 Policy and Procedure on Development, Approval, Implementation, Review and Document Control, Version 3 Procedure for the Release of Patient Identifiable Information, Version 25 March 2008 Investigation Policy, June 2008 Being Open Policy, (in draft) Incident Reporting Policy, January 2008
23 Page 23 of 23 Appendix 1 Summary CNST Reporting Structure Adverse Incidents Requests for Medical Records without allegations Complaints Request for Medical Records with allegations/demand for compensation Letter of Claim or request for compensation Court Proceedings Is it likely that a claim may ensue, be of high value, or be a publicly sensitive case (e.g.) obstetrics, paediatrics, brain damage, fatal accident, cancer diagnosis? Request further information regarding allegations Are allegations sufficient under Pre-Action Protocol? No Yes Inquest No Ye s Deal with request Preliminary analysis of claim to be undertaken. Costs not recoverable under CNST scheme. Envisaged by NHSLA to take approximately 2 months. Collect relevant records (must be disclosed within 40 days) Obtain views and reports from lead clinician Identify other key staff, if still employed by Trust obtain written comments Obtain internal expert opinion from appropriate member of staff NHSLA to be notified of relevant inquests NHSLA High/Medium value claims Small value claims Panel Solicitors Appointed Detailed Investigation Detailed Investigation