CLAIMS MANAGEMENT POLICY

CLAIMS MANAGEMENT POLICY Reference number: Corporate 022 Title: Version number: Version 1, draft 2 Policy Approved by: Corporate Management Team Date of Approval: 30 th March 2010 Date Issued: 30 th March 2010 Review Date: March 2011 Document Author: Daljit K. Bains Assistant Director of Quality Corporate Governance / Company Secretary Sponsoring Director: Mandy Ashton, Director of Quality

Version Control and Summary of Changes Version number Version 1, Draft1 Version 1, Draft 2 Date February 2010 March 2010 Comments (description change and amendments) New Policy developed. Equality Impact Assessment screening undertaken. Comments and advice received from: - Colleagues across Leicester City Community Health Services - Colleagues within the Quality Directorate and Finance Directorate. Reflects the changes made following the comments received from colleagues and following the Equality Impact Assessment Screening (Equality Impact Assessment Report Summary is available in Appendix 2). Approved by Corporate Management Team 30 th March 2010. V1, draft 2, March 2010 Page 2 of 31

Contents Page Policy Statement 4 Scope of the Policy 6 Statutory Requirements 7 Definitions 9 Roles, Responsibilities and Organisational Structure 10 Support Mechanisms for patients, carers and staff 15 Identification of claims and potential claims 16 Stages of a claim made against the PCT 17 Reporting to External Bodies 21 Delegated limits 22 Relationship to other systems 23 Implementation and Training 23 Monitoring and Auditing Arrangements 24 Links to other Policies 25 References 26 Appendices Appendix 1: Contact details 27 Appendix 2: Equality Impact Assessment Screening Report summary 28 V1, draft 2, March 2010 Page 3 of 31

POLICY STATEMENT 1. For the purposes of this policy NHS Leicester City (hereafter NHS Leicester City or the Primary Care Trust (PCT)) refers to both the corporate commissioning organisation and its provider organisation Leicester City Community Health Services (LCCHS). 2. NHS Leicester City attaches great importance to the management of risk and acknowledges that commissioning and providing health services is an inherently risky business. The PCT therefore aims to create an environment where risk is considered as a matter of course and appropriately identified and managed. 3. The PCT recognises the need to ensure appropriate management of claims in respect of alleged negligence where compensation is demanded, and the importance of taking action to minimise such claims through effective risk management. 4. This policy has been drafted to ensure the PCT has a robust system for the management of claims and to work effectively with the National Health Service Litigation Authority (NHSLA). The NHSLA is a Special Health Authority set up under Section 11 of the NHS Act 1977 and thus part of the NHS. It indemnifies NHS bodies in respect of both clinical negligence and non-clinical risks and manages claims and litigation for both clinical and non-clinical claims. NHS clinical claims are managed via the Clinical Negligence Scheme for Trusts (CNST), non-clinical claims via the Liabilities to Third Parties Scheme (LTPS); and the Property Expenses Scheme (PES). The PCT pays a premium to the NHSLA on an annual basis for this service. General guidance and information about the NHSLA is contained on their website at www.nhsla.com. 5. The Policy has regard to the NHSLA s Risk Management Standard for PCTs. This sets out the standards to achieve to reduce the risk of claims associated with the PES, the LTPS and CNST and the Existing Liability Scheme (ELS) schemes. 6. Adherence to this Policy should ensure that the PCT complies with the requirements for the membership of the NHSLA schemes and also with the requirements of the Pre-Action Protocol for the Resolution of Clinical Disputes and the Pre-Action Protocol for Personal Injury, so avoiding the cost penalties associated with non-compliance. 7. The Policy sets out the accountability for management of claims and should be read in conjunction with: a) the Risk Management Strategy and Policy to ensure that the PCT s approach to the management of risks identified as the result of claims is fully understood; b) the Incident Reporting Policy (for commissioning) and the Incident reporting and Management Policy (for LCCHS) to ensure the links with reported incidents. V1, draft 2, March 2010 Page 4 of 31

c) Complaints Policy (for commissioning) and Policy for the Management of Complaints and Concerns (for LCCHS). d) Support of staff involved in incidents, inquests, complaints and claims e) Whistleblowing Policy f) Data Protection Act Policy g) Records Management and Lifecycle Policy h) Being Open Policy (for LCCHS) 8. The PCT is committed to effective and timely investigation and response to any claim, which includes allegations of clinical negligence or personal injury. Through the provision of reliable and complete information from the start of any claim, the PCT will be able to ensure that any healthcare governance issues, which may emerge, are addressed promptly and the outcomes used to facilitate wider organisational learning. 9. By implementing a proactive approach to business risk management, NHS Leicester City will be able to identify the risks, train and educate staff appropriately, plan for emergencies and business interruptions, monitor incidents, review practice and therefore be able to determine how expenditure is targeted and used most effectively. The PCT has a culture of open reporting and will ensure both local and organisational learning from claims. V1, draft 2, March 2010 Page 5 of 31

SCOPE OF THE POLICY 10. This Policy sets out the PCT s approach to managing clinical and non-clinical (employers / public / property liability) claims. It sets out the arrangements, which are the minimum standards in accordance with the provisions of the schemes and the NHSLA Risk Management Standards (April 2009). 11. This Policy applies to those members of staff that are directly employed by the PCT, its provider organisation (Leicester City Community Health Services (LCCHS)) and for whom the PCT has legal responsibility. For those staff covered by a letter of authority/honorary contract or work experience this policy is also applicable whilst undertaking duties on behalf of the PCT or working on PCT premises and forms part of their arrangements with the PCT. As part of good employment practice, agency workers are also required to abide by the PCT policies and procedures, as appropriate, to ensure their health, safety and welfare whilst undertaking work for the PCT. 12. The objective of the Policy is to promote openness, good communication and speedy resolution for service users involved in claims or potential claims through effective claims management and thorough investigation of the underlying causes leading to claims. 13. The Policy will improve the user experience and safety as the root causes of claims are identified and addressed. The lessons from claims will also enable the PCT to continue to be a learning organisation and reduce the financial impact of claims. 14. The Policy enables the PCT to protect the public purse against malicious or false claims. The PCT will seek to defend any claim where liability is in doubt. It is, however, acknowledged that the legal process could have a significant impact from both a financial, social and personal perspective and where liability can be proven, the PCT will seek to settle claims promptly and fairly, without court proceedings. V1, draft 2, March 2010 Page 6 of 31

STATUTORY REQUIREMENTS Legislation 15. The NHSLA governs the financial pooling schemes: Existing Liabilities Scheme (ELS), Clinical Negligence Scheme for Trusts (CNST) Risk Pooling Scheme for Trusts (RPST) i.e. Liabilities to Third Parties Scheme (LPTS) and the Property Expenses Scheme (PES). 16. Membership of the CNST, LTPS and PES is voluntary and is open to all NHS Trusts, PCTs, health authorities and the Health Protection Agency. The PCT is a member of these schemes. 17. The principal task of the Litigation Authority is to administer schemes set up under Section 21 of the National Health Service and Community Care Act 1990. 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. Guidance 18. Third party liability claims can arise out of any incident where it is alleged that the PCT has failed to provide a safe environment for patients, the public or employees. 19. The claimant must be able to demonstrate that they suffered a loss as a result of the incident in terms of physical or psychological injury or actual financial loss. The PCT must be able to demonstrate that it took all reasonable steps to prevent such an incident occurring. 20. A disclaimer stating that the PCT accepts no responsibility for loss or damage suffered by people on our premises provides no defence. 21. Employer/Public Liability Claims the PCT has a primary liability to select competent staff, to provide proper and well-maintained equipment and facilities and provide a safe system of care. It has a secondary liability, sometimes called vicarious liability, for the action or commissions of its employees in relation to patients and the general public. 22. Employer/public liability claims can arise out of the PCT s failure to provide a safe environment. 23. Both schemes date from 1 April 1999, and cover begins from that date, or from the date when the NHS body joined the scheme where that is later. LTPS covers employers' liability claims, from slips and trips in the workplace to serious manual handling, bullying and stress claims. In addition, LTPS covers public and products liability claims, from personal injury sustained by visitors to NHS V1, draft 2, March 2010 Page 7 of 31

premises to claims arising from breaches of the Human Rights Act, the Data Protection Act and the Defective Premises Act. There is also cover for defamation, professional negligence by employees and liabilities of directors. PES provides cover for first party losses such as theft or damage to property. 24. Criminal Injury Claims are considered by the Criminal Injury Compensation Authority (www.cica.gov.uk) from residents within Great Britain (England, Scotland and Wales). Claims will be considered if there has been physical or mental injury (or both) as a direct result of a violent crime, or of some other incident covered by the scheme (it is not necessary for an offender to be convicted of, or even charged with the crime). 25. Claims for compensation for lost, damaged or stolen property are handled internally through the PCT s losses and compensation procedure. Examples of such claims might include: Clothing which has been recorded as being in the possession of a patient going missing Damage to spectacles or clothing Theft of items from a patient s locker 26. Any incident where there may be a recovery from the PCT s insurers will be identified by the Assistant Director of Quality Corporate Governance / Company Secretary and a claim made. 27. The PCT must be able to demonstrate that reasonable steps were taken to protect the person s property. 28. Details of losses as a result of claims should be reported to the PCT s Finance Directorate using the losses and special payment report / claim form so that they can be recorded on the Losses Register. V1, draft 2, March 2010 Page 8 of 31

DEFINITIONS 29. A claim is defined as allegations of clinical negligence and / or a demand for compensation made following an adverse clinical incident resulting in personal injury or any clinical incident, which carries significant litigation risk for the PCT. This includes complaints leading to claims notification of serious adverse events, incident reports generated by risk management processes any of which represent a significant litigation risk and requests for the disclosure of medical records. 30. The NHSLA administers the following schemes: 30.1 Clinical Negligence Scheme of Trusts (CNST) covers all clinical negligence claims against member NHS bodies where the incident in question took place on or after 1 April 1995 (or when the body joined the scheme, if that is later). Incidents before this date are covered by the Existing Liabilities Scheme (ELS). Clinical Negligence claims may arise out of any incident where it is alleged that a service or individual clinician failed to provide adequate care, resulting in harm to a patient. 30.2 The Existing Liabilities Scheme (ELS) covers clinical negligence claims made against the NHS in England where the incident in question took place before April 1995. It is not a membership scheme, as it is funded centrally by the Department of Health. 30.3 Liabilities to Third Parties Scheme (LTPS) covers employers liability claims for injuries sustained in the workplace, public liability claims for personal injury sustained by visitors to NHS premises, product liability claims and cover for professional negligence by employees and liabilities of directors. In addition, LTPS covers public and products liability claims, from personal injury sustained by visitors to NHS premises to claims arising from breaches of the Human Rights Act, the Data Protection Act and the Defective Premises Act. There is also cover for defamation, professional negligence by employees and liabilities of directors. 30.4 Property Expenses Scheme (PES) covers accidental loss of destruction of or damage to any property owned by or the responsibility of the PCT. 30.5 Risk Pooling Schemes for Trusts (RPST) two separate schemes covering non-clinical risks, the Liabilities to Third Parties Scheme (LTPS) and the Property Expenses Scheme (PES) that are collectively known as the Risk Pooling Scheme for Trusts. 31. The claimant is any patient or their representative, member of the public, or employee who instructs solicitors to act on their behalf to pursue a claim against the PCT, or who enters legal proceedings against the PCT or who pursues compensation. 32. Pre-Action Protocol aims to achieve settlement of claims without the need for expensive and risky court proceedings. V1, draft 2, March 2010 Page 9 of 31

ROLES, RESPONSIBILITIES AND ORGANISATIONAL STRUCTURE Accountabilities and responsibilities Responsibility of the Chief Executive 33. The Chief Executive is the accountable officer for the PCT and, as such, has overall accountability and responsibility for ensuring there is an effective system for managing claims in place within the PCT. 34. On behalf of the Chief Executive, Directors are collectively and corporately responsible and accountable for the management of all risks in the organisation, including claims. Specific additional delegated responsibilities are set out below. Responsibility of Director of Quality 35. Director of Quality has delegated responsibility for ensuring robust systems are in place to manage clinical and non-clinical claims and overseeing the handling and monitoring of claims. Responsibility also includes regularly reporting and keeping the Corporate Management Team and the Trust Board informed of significant risks and major developments. 36. In addition, responsibilities include approval of the payment of settlements recommended by the NHSLA. Managing Director (LCCHS) 37. The Managing Director is ultimately responsible for ensuring the safety of patients, staff, visitors, volunteers, contractors and members of the public, within the provider arm of the organisation. Responsibility also includes regularly reporting and keeping the Provider Services Board informed of significant risks and major developments. Assistant Director of Quality Corporate Governance / Company Secretary 38. The Assistant Director of Quality Corporate Governance / Company Secretary (hereafter the Assistant Director of Quality) has responsibility for the management of all claims made against the PCT. It will be the Assistant Director of Quality s responsibility to keep the Director of Quality informed on all claims. 39. The Assistant Director of Quality will act with the delegated authority of the Director of Quality and is responsible for: a. Ensuring all requests for claims received are acknowledged within specified timescales. b. The provision of advice and information to the PCT regarding the claims process. Including seeking advice from colleagues e.g. Health and Safety Advisor. c. Notification to the Corporate Management Team of progress with all claims. V1, draft 2, March 2010 Page 10 of 31

d. Preparing reports and other submissions as required for the NHSLA and the PCT Board and / or Committees. e. Making contact with the relevant external bodies as identified in section on Reporting to External Bodies below. f. Monitoring the progress and outcome of claims, including expected settlement dates. g. Considering trends identified between claims, incidents and complaints and the lessons learnt and make recommendation for remedial action to support service improvement and the working environment. h. Ensuring claims which present a significant risk to the PCT are recorded as a risk on the relevant risk register and escalated to the Corporate Management Team. i. Sharing an outline of current claims with senior managers on a regular basis. The information will be linked to individual incidents and any action plans raised as a result. This will support the identification of common themes and identify any further action necessary e.g. development of policy, establishing training needs etc. j. Ensure all payment in settlement of employer s / public liability claims is entered into the PCT s Register of Losses and Special Payments in conjunction with the Finance Directorate as per the Corporate Governance Framework (i.e. Standing Orders and Standing Financial Instructions). k. Ensure compliance with the Data Protection Act Policy, in conjunction with the Associate Director of Information Governance and Security. l. The maintenance of the PCT s membership of the NHSLA schemes. Ensuring that the PCT has the necessary insurance arrangements in place as required. Joint Head of Quality Assurance (LCCHS) 40. The Joint Head of Quality Assurance has responsibility for the management and handling of claims within LCCHS and works closely with the Assistant Director of Quality. See also responsibilities within Support of Staff Involved in Incidents, Inquests, Complaints and Claims Policy; and Aggregating Data and Learning from Incidents, Complaints and Claims Policy. Risk and Assurance Officer 41. The Risk and Assurance Officer has day to day responsibility for handling the claim and maintaining a portfolio of claims held and updated on DATIX. This includes complying with the Clinical Negligence Pre-Action Protocol, acknowledging all requests for claims received; the co-ordination of the investigation of each claim, producing regular reports for the Assistant Director of Quality. V1, draft 2, March 2010 Page 11 of 31

42. The Risk and Assurance Officer will provide a point of contact for communication with the Claimant's Solicitors, NHSLA, Panel Solicitors, Director/Managers and any other External Agencies relevant to the claim. In addition will notify the NHSLA of all letters of claims within the stipulated timescales and disclosing of medical records being completed in accordance with the Data Protection Act and the Pre-Action Protocol. General Management Responsibilities 43. All Directors/Managers are responsible for ensuring that appropriate and effective risk management processes are in place within their designated areas and scope of responsibility. They are also responsible for ensuring that all their staff are made aware of the risks within their work environment and of their personal responsibilities, and that all their staff receive appropriate information, instruction and training to enable them to work safely. These responsibilities extend to anyone affected by the PCT s operations, including contractors, members of the public and visitors. 44. In addition, in order to reduce the likelihood of claims and litigation being made against the PCT, Directors and Managers are responsible for: ensuring that staff are appropriately trained to undertake their role and responsibilities. assisting the Assistant Director of Quality in obtaining reports/statements from members of staff as requested within the timescales identified for the purpose of processing the claim or legal matter. It is important to note that some reports may be disclosable in law. Care should be taken by Directors/Managers and others compiling reports and should restrict themselves to facts and not to express opinions which could adversely affect the PCT if litigation is commenced. notifying the Assistant Director of Quality immediately (at most within 2 days) of any letter or documentation received, which relates to a claim or court proceedings. Responsibilities of all Employees 45. The cooperation of employees is essential to allow early assessment of the merits of claims, and plan their future management. In clinical negligence cases, the view of healthcare professionals and key staff involved in the treatment which has given rise to the claim must be considered carefully by the Director of Quality and the Assistant Director of Quality together with the advice of the NHSLA before a decision is made to settle or contest the claim. All employees are responsible for: notifying the Assistant Director of Quality or Joint Head of Quality Assurance (for LCCHS) immediately (at most within 2 days) of any V1, draft 2, March 2010 Page 12 of 31

letter or documentation received, which relates to a claim or court proceedings (please see contact details as at Appendix 1). encouraging prompt incident reporting and investigation and that actions are taken to eliminate or reduce the risk of reoccurrence in line with the PCT s Incident Policy and the Serious Incident Policy. all staff must fully co-operate with the Assistant Director of Quality and the Joint Head of Quality in the investigation and handling of claims and potential claims. Organisational structure 46. An organisational structure, to help manage the delegated responsibility for implementing risk management systems within the PCT, is detailed within the Risk Management Strategy and Policy. Responsibilities of the Trust Board 47. The Trust Board has a statutory responsibility to manage risks effectively to ensure the most effective use of public money and to monitor the PCT s compliance with statutory requirements of prevailing health and safety legislation, Race Relations (Amendment) Act 2000, The Disability Discrimination Act (1995). 48. It is responsible for reviewing the effectiveness of internal controls. The Board is required to produce statements of assurance that it is doing its reasonable best to manage the PCT s affairs efficiently and effectively through the implementation of internal controls to manage risk. The Board will actively monitor risks and the implementation of internal controls to manage risks through its sub-committees, in particular, the Audit Committee and the Corporate Management Team in respect of claims. Responsibility of the Trust Board Committees: 49. A comprehensive committee structure has been developed and implemented to ensure reporting and accountability for risk management within the PCT (as detailed within the Risk Management Strategy and Policy). 50. It is the responsibility of the Trust Board s sub-committees to ensure that evidence is in place demonstrating that effective controls and reasonable assurances are in place, the Corporate Management Team being one of these committees as detailed below. Corporate Management Team 51. The Corporate Management Team has delegated responsibility for reviewing and monitoring business risks. It will establish effective links, which enable lessons learned from the risk process to be directly fed into the business planning cycle. The Corporate Management Team is responsible for: Receiving quarterly reports detailing aggregate value of claims and details of any major individual claims; the progress and likely outcome of these claims, including the expected settlement date; the final outcome of the claim and proposed remedial action arising out of particular claims. V1, draft 2, March 2010 Page 13 of 31

Ensuring that remedial actions are implemented and effective and that any concerns are referred to the PCT Board for redress. Ensuring that lessons learnt are considered and disseminated across the organisation and with key stakeholders, as appropriate. The lessons learnt and risks identified via claims management will inform commissioning of services and improvements and change in practice within the provision of services; and will be considered in relation to the working environment for staff. Providing assurance on the effectiveness of the claims management policy, procedure and processes through regular reporting and remedial actions taken. The Risk Management Group and the Clinical Governance Committee (LCCHS) is responsible for: 52. Reviewing quarterly aggregated reports and the Risk Management Group has specific responsibilities for monitoring completion of action plans. Detailed responsibilities for the Risk Management Group and the Clinical Governance Committee are described within the Aggregating Data and Learning from Incidents, Complaints and Claims (LCCHS Policy) and Support of Staff Involved in Incidents, Inquests, Complaints and Claims. NHS Litigation Authority 53. The NHSLA has responsibility for the financial management of all clinical negligence claims. It also has responsibility for the financial management for all reportable LTPS and PES claims above the designated excess levels. All payments in settlement of personal injury claims will be entered in summary form in the register of losses and special payments by the NHSLA. Any contributions from the NHSLA (LTPS or PES) will be noted in the register. V1, draft 2, March 2010 Page 14 of 31

SUPPORT MECHANISMS FOR PATIENTS/CARERS AND STAFF 54. The PCT recognises the importance of ensuring the PCT s employees are appropriately supported during what can be a lengthy and stressful litigation process. Staff will receive the necessary support, be treated with sensitivity and will be kept regularly informed of progress and developments via their line manager / Assistant Director and / or Director. Staff will also have sight of any response letter which includes their comments. 55. The PCT promotes an open, positive and non-punitive approach towards incident reporting, risk management and claims and that is free from an assumption of blame. 56. The PCT has also adopted an open practice policy to encourage staff and services to learn from when things go wrong (see the PCT s Whistleblowing Policy and Support of Staff Involved in Incidents, Inquests, Complaints and Claims Policy (for LCCHS)). V1, draft 2, March 2010 Page 15 of 31

IDENTIFICATION OF CLAIMS AND POTENTIAL CLAIMS 57. Claims may be identified as a result of an incident report, compliant, request for access to records, employment tribunal, letter from claimant or solicitor or any other information that might indicate a claim being made. Significant litigation risks will also trigger the claims procedure. Examples are as follows: Where an incident has occurred it is apparent from the investigation / root cause analysis that there has been a possible breach of the 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. V1, draft 2, March 2010 Page 16 of 31

STAGES OF A CLAIM MADE AGAINST THE PCT Pre-Action Protocol for Clinical Negligence Claims 58. Obtaining the health records: the patient and / or legal adviser will request copies of the patient s clinical records. The request should be made in writing to the PCT and constitute satisfactory evidence for the PCT purposes of the patient s consent for the release of their records to their legal and other expert advisors. The PCT must adhere to the Data Protection Act Policy and the timescales stipulated within it to ensure compliance with the Data Protection Act. 59. If the patient decides that there are grounds for a claim, they or their solicitors will send a letter of claim to the PCT. The letter of claim should contain a clear summary of the facts on which the claim is based, including the date of incident, the alleged adverse outcome, and the main allegations of negligence. It should describe the patient s injuries, the present condition and prognosis, and the estimated financial loss incurred by the Claimant. In more complex cases a chronology of the relevant events should be provided. Sufficient information should be given to enable the PCT to commence investigations if it has not already done so and for the NHSLA to put an initial valuation on the claim. 60. The letter of claim should be acknowledged by the PCT immediately and then forwarded to the NHSLA within 24 hours, as they will have to make an initial response within 14 days of receipt. 61. NHSLA should investigate the claim with the help of the PCT and within 3 months of the letter of claim provide a reasoned answer to it in the form of a letter of response. The NHSLA in consultation with the PCT will specify which issues of breach of duty and / or causation are admitted and which are denied and why. Documents must be enclosed which are material to the issues in dispute and which be likely to be ordered / disclosed by the court during proceedings. The letter or response will be drafted by the NHSLA who deal with all clinical negligence cases under CNST within 2 months of the letter of claim. Pre-Action Protocol for Personal Injury Claims 62. Letter of Claim - receipt of a letter of claim is likely to be the first indication the PCT receives of a potential personal injury claim. The PCT should acknowledge the letter of claim immediately and forward it to the NHSLA who will deal with it on the PCT s behalf. The NHSLA will acknowledge the letter of claim within 21 days of receipt. 63. Letter of response the NHSLA will investigate the claim and within three months of the acknowledgment of claim provide a reasoned answer to it in the form of a letter of response. If liability is denied, reasons must be given for the denial, and documents must be enclosed which are material to the issues in dispute and which would be likely to be disclosed by the court during V1, draft 2, March 2010 Page 17 of 31

proceedings. The letter of response will be drafted by the NHSLA and admissions made in a letter of response are bindings for all claims. Investigations and Root Cause Analysis 64. Most claims will arise from incidents, which have already been reported in accordance with the PCT s and LCCHS s Incident Reporting Policies. It is important that the investigation process defined in the Incidents Reporting Policy be followed to support the management of any claims or potential claims. 65. The receipt of either of the following will trigger an investigation by the NHSLA: a request for records pursuant to the pre-action protocol for clinical negligence disputes which intimates a claim against the PCT; or a letter of claim; or a claim form. 66. Internal investigation must be commenced immediately upon receipt of a letter of claim or claim form. Procedure for handling claims 67. There will be a clearly documented procedure for handling claims in accordance with the Pre-Action Protocol for the Resolution of Clinical and Non-Clinical Disputes and CNST reporting guidelines and Non-Clinical Claims Reporting Guidelines. This will involve the following aspects: a) setting up a record on the claim and maintaining a claims review system. b) Establishing when an objective account of the original incident is needed, giving appropriate weight to the recollection of the staff originally involved. c) Identifying all records related to the incident. d) Establishing and maintaining contact with all the staff involved in the original incident. This will very often involve making contact with staff that are now working for other employers. The PCT will give every assistance to make staff available for this purpose and would expect appropriate arrangements to be in place within other NHS Bodies. e) Obtain a risk assessment of the claim and an initial valuation. f) Liaise with the NHSLA and their solicitors, for clinical and non-clinical negligence cases involving a potential claim, which falls to the CNST, ELS, LTPS or PES. g) Feeding any risk management issues identified during claims assessment into the PCT s risk management systems, including systematic review of all cases after closure. V1, draft 2, March 2010 Page 18 of 31

h) Clear allocation of responsibility for carrying out any remedial action required and for disseminating any wider lessons both within the PCT and where appropriate more widely. i) Arrangement and analysis for claims against the PCT, in particular any trends or emerging patterns that have implications for the overall risk management of the PCT. j) Arrangements for authorised persons to sign Disclosure Statements and Statements of Truth verifying the disclosure of records and contents of the Defence. Claims Information and Confidentiality 68. The PCT will maintain an information system DATIX which will incorporate all information on personal injury claims, both clinical negligence and non-clinical injury. The information will only be used for a proper management function and defending claims or responding to complaints by those who have proper need for access to perform these functions. Care will be taken to ensure staff confidentiality. 69. The information system will be consistent with the requirements of the CNST, ELS, LTPS and PES, and compliance with the Data Protection Act 1998 and Access to Health Records Act 1990. 70. Due regard will be paid to the confidentiality of data relating to individuals. Data will be processed in compliance with the Data Protection Act 1998. Records must be provided within 40 days of the request made to the PCT and payment of the fees at a cost not greater than that specified by the Data Protection Act. 71. High standards of record keeping documentation are essential especially in medical records, to ensure that the facts are available in the event of a claim being made. 72. When staff are asked to provide reports, statements or comments, they will be reminded as necessary on whether their reports are potentially disclosable in the event of a claim proceeding. Documentation must be provided to the Risk and Assurance Officer. The records will be kept for the following periods: V1, draft 2, March 2010 Page 19 of 31

Type of Claim Type of Records Length of time Clinical Negligence Maternity records, protocols, policies and maternity care, including those records of episodes of maternity care that end in stillbirth of where the child dies later. Minimum 25 years Employer s Liability Litigation Retention of legal records Records, protocols and policies relating to children and young people. All other personal health records. All personal health records. Any document relating to legal actions or to complaints including accident record sheets, nursing duty rosters. - until the patient s 25 th birthday or 26 th if entry made when young person was 17; - or 8 years after the death of a patient. Minimum 10 years. Minimum 10 years. Minimum 10 years after the incident or the matter complained of, or when an accident has been commenced, as legally advised. V1, draft 2, March 2010 Page 20 of 31

REPORTING TO EXTERNAL BODIES 73. The Assistant Director of Quality will liaise with appropriate PCT Directors to determine if external agencies should be involved in the claim investigation process. This could involve ensuring reports are sent to external agencies following investigation of the claim or of any incidents that are identified through the claims process. External Agencies could include the following where the Assistant Director of Quality would be responsible for: 73.1 NHS Litigation Authority (NHSLA) - for initial reporting of a new claim to the NHSLA and ongoing liaison thereafter including seeking their approval of any proposed press releases in respect of claims matters. 73.2 Strategic Health Authority (SHA) - for reporting any new SHA claims (i.e. claims with an incident date before 1.4.04) to the SHA and any ongoing liaison thereafter. 73.3 Coroner's Office - for acting as a link between the PCT and the Coroner's Office once a death has been reported to them. Such deaths may already be or may go on to be subject to a claim. 73.4 Health & Safety Executive (HSE) - responsible for acting as a link between the PCT and the HSE once a RIDDOR incident has been reported to them. Such incidents may be subject to a claim. 73.5 Police - responsible for assisting the police as appropriate and as necessary in respect of matters reported to them which may or may not then become the subject of a claim. 73.6 Claimants' and Defence Solicitors - liaison with any relevant legal representatives as required by the NHSLA. V1, draft 2, March 2010 Page 21 of 31

DELEGATED LIMITS 74. From April 2002 all claims for compensation arising from allegations of clinical negligence pass through the NHSLA. As there are no longer any excesses in the CNST scheme, all claims fall within it, and NHSLA authorisation will be required before admissions are made and monetary compensation is offered. 75. In the absence of such authorisation the NHSLA will not reimburse the PCT either for the compensation awarded or for any of the costs generated. Such payments, if made by the PCT will fall outside the scheme and could possibly result in criticism from auditors. 76. For non-clinical claims the standard excesses applying are: Type of Claim Excess Employer Liability Claims 10,000 Public Liability Claims 3,000 Property Expenses Scheme (i) Buildings 20,000 Property Expenses Scheme (ii) Contents 20.000 Contract works Damage to existing structures 20,000 77. The PCT will be required to immediately report incidents or claims to the NHSLA where the total cost of the case will approach or exceed the Scheme deductable, or excess. 78. The Corporate Management Team and within the confidential session of the Trust Board by exception report will be notified of claims, which will by definition arise from serious clinical incidents. V1, draft 2, March 2010 Page 22 of 31

RELATIONSHIPS TO OTHER SYSTEMS 79. The PCT appreciates the importance of effective handling of complaints and litigation with regard to its reputation. The PCT will ensure that all Directorates are fully consulted on its claims management procedures and that appropriate arrangements are in place to ensure that the Assistant Director of Quality and the Risk and Assurance Officer are supported in the day to day handling of claims. The Corporate Management Team and the provider Risk Management Committee and Clinical Governance Committee will establish how the results of retrospective review of claims can be used as an input to the clinical governance process and ensure organisational sharing of lessons learnt. IMPLEMENTATION AND TRAINING 80. This Policy will be reviewed annually by the Assistant Director of Quality and more frequently where there are changes to legislation, good practice, case law, significant incidents reported and change to organisational infrastructure. 81. This Policy will be circulated to all Directors, Senior and Middle Managers and Staff and made available on the PCT intranet. It will be their responsibility to ensure that staff in their department read and consult these documents and ensure attendance at relevant training programmes. 82. The organisational learning / training needs analysis is coordinated by the Human Resources Team (both commissioning and provider) in order to identify the learning needs of permanent and temporary employees along with the frequency of any updates required. This will be documented on the individual s personal development plan, which will be monitored and reviewed as part of the annual appraisal process. Where necessary, and appropriate, they may participate in the existing risk management training programme. All training is recorded and monitored in accordance with the Mandatory Training Policy, in conjunction with the Training and Education Team. Non-attendance of staff will be followed up and monitored as detailed within the training policies. V1, draft 2, March 2010 Page 23 of 31

MONITORING AND AUDITING ARRANGEMENTS 83. Performance against key performance indicators will be reviewed by the Corporate Management Team on an annual basis. The data and information will be used to monitor the effectiveness of the implementation of the Policy and to inform the development of future policies. 84. The Assistant Director of Quality will ensure systems and processes are in place to enable the collection of relevant data and information to support the following performance indicators to be monitored: Key Performance Indicators 1. Compliance with NHS Litigation Authority reporting guidelines 2. Process claims in a timely manner to keep costs to a minimum 3. Number of claims originating from complaints/incidents 4. Number of times Committees have met and discussed claims 5. Quarterly reports to provide qualitative and quantitative analysis. Method of Assessment Audit of Claims Files Audit of Claims Database Analysis of Incident/Complaints Database Claims Annual Report Quarterly reports to Corporate Management Team to detail a statistical analysis, document trends / themes / causal factors and subsequent changes in practice. 85. Completion of action plans resulting from the performance review against the above indicators will be monitored by the Director of Quality and reported to the Corporate Management Team. V1, draft 2, March 2010 Page 24 of 31

LINKS TO OTHER POLICIES Being Open Policy Complaints Policy (for commissioning) and Policy for the Management of Complaints and Concerns (for LCCHS). Data Protection Act Policy Incident Reporting Policy (for commissioning) and the Incident reporting and Management Policy (for LCCHS) Records Management and Lifecycle Policy Risk Management Strategy and Policy Support of staff involved in incidents, inquests, complaints and claims (for LCCHS) Whistleblowing Policy V1, draft 2, March 2010 Page 25 of 31

REFERENCES Department of Constitutional Affairs, 1998, Pre-action Protocol for the Resolution of Clinical Disputes 1998/183 (online) London: The Stationery Office (www.dca.gov.uk) Department of Constitutional Affairs, 1998, Pre-Action Protocol for Personal Injury Claims (on line) London: The Stationery Office. Available from www.dca.gov.uk The National Health Service Litigation Authority Framework Document (available form www.nhsla.com) Clinical negligence reporting guideline fourth edition January 2007 (available from www.nhsla.com_ Non-clinical claims reporting guidelines Available from www.nhsla.com (Publications - Claims publications) NHSLA Disclosure List. Available from www.nhsla.com (Publications Claims publications) V1, draft 2, March 2010 Page 26 of 31

APPENDIX 1 Contact Details for Claims Management and Handling Name Mandy Ashton Director of Quality (Delegated overall responsibility for Claims) Daljit K. Bains Assistant Director of Quality Corporate Governance / Company Secretary (Claims Manager overall) Nichola Douglas Joint Head of Quality Assurance (LCCHS) (Claims Manager / Handler LCCHS) Amardip Lealh Risk and Assurance Officer (Claims Handler) Contact details NHS Leicester City St John s House, 30 East Street, Leicester, LE1 6NB. Tel: 0116 2958485 Email: mandy.ashton@leicestercity.nhs.uk NHS Leicester City St John s House, 30 East Street, Leicester, LE1 6NB. Tel: 0116 2958486 Email: daljitkaur.bains@leicestercity.nhs.uk Leicester City Community Health Services Riverside Bridge Park Road Thurmaston Leicester. Tel: 0116 2256587 Email: Nichola.douglas@leicestercity.nhs.uk NHS Leicester City St John s House, 30 East Street, Leicester, LE1 6NB. Tel: 0116 2950755 Email: Amardip.lealh@leicestercity.nhs.uk V1, draft 2, March 2010 Page 27 of 31

APPENDIX 2 EQUALITY IMPACT ASSESSMENT As part of its development, this Policy and its impact on equality have been reviewed in consultation with the Equalities Team in line with the Equality Scheme and Equal Opportunities Policy. The purpose of this screening is to minimise and if possible remove any disproportionate impact on employees on the grounds of race, sex, disability, age, sexual orientation or religious or other belief. No detriment was identified during the screening in February 2010 therefore at this stage it will not be necessary to conduct a full impact assessment. Please see Equality Impact Assessment screening form below. V1, draft 2, March 2010 Page 28 of 31

NHS Leicester City: Equality Impact Assessment Screening Tool As a requirement of current equality legislation, the organisation must demonstrate that its intended activity addresses inequalities and unlawful discrimination. As such a screening exercise should be carried out, and this form completed, for all new and reviewed policies, procedures, strategies and guidelines detailing the equality considerations For guidance and support in completing this form please contact a member of the Equality and Human Rights team on Extension 2951434, or email Karl Mayes, Equality and Human Rights Manager Title: Please give brief details of proposals: The purpose of the is to define the framework that NHS Leicester City will utilise to manage clinical and non-clinical claims in both the commissioning and provider arms of the organisation. Who is intended to benefit from these proposals? The objective of the Policy is to promote openness, good communication and speedy resolution for service users involved in claims or potential claims through effective claims management and thorough investigation of the underlying causes leading to claims. This will enable the PCT to: enhance patient care through safer practices minimise injury or loss through safer systems of work create a safer environment for patients, visitors and staff increase awareness and ownership of risk and liabilities reduce the financial and other cost of risk taking and accidents improve the reputation of the PCT and confidence of the public in NHS services In the table below, please describe how the proposals will have a positive impact on service users or staff. Please also record any potential negative impact on equality of opportunity for the target population in relation to disability, gender, race, age, sexual orientation, religion / belief and deprivation In the case of negative impact, please indicate any measures planned to mitigate against this. V1, draft 2, March 2010 Page 29 of 31

Positive impact Negative Impact Age Disability Gender Race Religion / Belief Sexual Orientation Deprivation Please see who is intended to benefit from this section above No No No No No No No Please give details of any evidence / public engagement that has informed these proposals Internal consultation of the Policy has taken place in line with the PCT s Policy for Policy Development. If a negative impact is indicated above, a full Equality Impact Assessment must be undertaken V1, draft 2, March 2010 Page 30 of 31

Is a full Equality Impact Assessment indicated? Yes No If Yes, when will this begin? Date If No, give reasons why not: Name: Daljit K. Bains Designation: Assistant Director of Quality Corporate Governance / Company Secretary Signature: Date: February 2010 Action plan Problem/barriers identified Actions to overcome problem/barrier Resources required Responsibility Target date Age Disability Gender Race Religion / Belief Sexual Orientation Deprivation V1, draft 2, March 2010 Page 31 of 31