Document

Claims Management Policy and Procedure

Responsible Directorate: Corporate Services and Risk

Responsible Director: Helena Corder Date Approved: 8 August 2008

Committee: Governance Committee Version Control Document Title Claims Management

Document number 1

Author Jane Kennedy

Contributors Terry Service

Version 1

Date of Production 10 June 2008

Review date August 2010

Postholder responsible for revision Terry Service

Primary Circulation List Governance Committee

Web address www.kirkleespct.nhs.uk

Restrictions None

Standard for Better Health Domain Domain 1 Safety, Domain 3 Governance

Core Standard Reference: C1 (a), (b). C7 (a), (b). C10 (a), (b). C11 (a)

Performance Indicators 1. Claims acknowledgment timescales 2. Reports to Governance Committee

Page 1 of 31

Contents

Section Page

1. Introduction 3

2. Purpose 3

3. The Policy 3

4. Definition 4

5. Roles and responsibilities 5

6. The Trust’s Solicitors 6

7. Communication with stakeholders 7

8. Learning from Experience 7

9. Equality Impact Assessment 8

10. Policy Review 8

11. Dissemination and implementation 8

12. Key Stakeholders consulted 8

13. The Procedure 8

14. Conditional fee agreements 9

15. Claimant’s part 35 offer 10

16. Risk Management 10

17. Pre-action Protocol 12

18. Administration of Clinical Negligence claims 13

19. Preliminary analysis 14

20. Letter of claim 16

21. Reporting procedures 16

22. Strategic Health Authority Claims 19

23. Liabilities to third parties scheme: Employer and Public Liability Claims (RPST) 19

24. Incidents 20

25. NHSLA reporting guidelines 20

26. Administration of liabilities to third parties claim (LTPS) 21

27. Reportable claims 23

Section Page

28. Monitoring arrangements 24

29. Staff training 25

30. Press information 25

Appendices

1. Request for authorisation to obtain legal advice 26

2. Pro forma for statement for complaints, claims and incidents 28

3. Template for letter of claim 30

4. Template for letter of response 31

5. NHS Kirklees equality impact assessment 32

Page 2 of 31

1. Introduction 1.1 The Trust Board is committed to effective and timely investigation and response

to any claim. The Trust will follow the requirements and note the recommendations of the NHS Executive (NHSE) and the NHS Litigation Authority (NHSLA) in the management of claims. Every member of staff is expected to co-operate fully, as required, in the assessment and management of each claim.

2. Purpose

i) The Trust is committed to the effective and timely investigation and response to all claims. This involves all and/or any claims arising from alleged negligence, malpractice, adverse incidents or any other legal claim brought against the Trust, its employees or those working for and on behalf of the Trust.

ii) The Trust will follow the requirements of the NHSLA (National

Health Service Litigation Authority) in the management of claims made against the Trust, its employees or those persons working for or on behalf of the Trust. Every member of staff is expected to co-operate fully in the assessment and management of each claim. Where appropriate the Trust also aims to ensure that its policies are compliant with the Human Rights Act 1998.

iii) This Protocol outlines the procedures that should be applied

upon receipt of notification from a Claimant’s Solicitor, or member of public, that they may wish, or are pursuing a claim for damages against the Trust, for clinical negligence and in relation to an employer or public liability claim.

iv) Reference to the Policy is made within the Trust’s Standing

Financial Instructions and copies of the Policy are held by the Director of Finance and Director of Corporate Services and Risk Management.

3. The Policy 3.1 This policy is based on current guidance from the NHSLA. Any future changes in guidance will be followed, and may supersede the procedures laid down in this policy. 3.2 The Trust recognises, and will at all times adhere to, the pre-action protocols for the resolution of clinical disputes and personal injury claims, in the interests of:

• Encouraging a climate of openness and transparency when something has “gone wrong” with a patient’s treatment or the patient is dissatisfied with that treatment and/or the outcome.

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• Encouraging the adoption of a constructive approach to

complaints and claims, and accepting that concerned patients are entitled to an explanation and an apology if warranted and to appropriate, timely redress in the event of alleged negligence.

• Building on, and increasing the benefits of, early but well

informed settlement which is equitable to both parties involved in the dispute or claim.

• Providing staff with a legally deliverable fair outcome where

claims arise that are resultant from injury or loss due to issues covered by employees or public liability

4. Definition 4.1 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 Trust, or • a demand for compensation made following an adverse incident

resulting in damage to property and/or personal injury. 4.2 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 may be required and the claim may need to be reported to the NHSLA.

Clinical Negligence – these claims concern acts or omissions as part of clinical care. Clinical negligence claims are managed via the requirements of the:

• Clinical Negligence Scheme for Trusts (CNST) (for a claim for an incident from 1 April 1995) • Existing Liabilities Scheme (ELS) (for an incident prior to 1 April 1995) • Claims that pre-date 1 April 1992 are the responsibility of

Yorkshire and Humber NHS. (the Trust assists in administration of these claims)

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• Liability to Third Parties (Employer’s Liability, Public Liability, Products Liability and Professional Indemnity) –

(these are claims usually made by staff or members of the public and relate to non-clinical incidents)

• Property Expenses (these claims concern damage to property and buildings) • Liability to Third Parties and Property Expenses are managed

via the requirements of the Risk Pooling Scheme for Trusts (RPST).

5. Roles and responsibilities 5.1 The Director of Corporate Services and Risk Management is the Executive Member of the Trust Board with responsibility for risk management and will keep the Board informed on major developments on claims.

5.2 The Assistant Director of Corporate Services and Risk Management has

overall responsibility for claims management reporting directly to the Director of Corporate Services and Risk Management.

5.3 Investigation and Litigation Manager has day to day responsibility for the investigation and management of all claims reporting directly to the Assistant Direct of Corporate Services and Risk Management 5.4 All Trust staff are responsible for:

• Alerting the Investigation and Litigation Manager to matters which may lead to a claim.

• Alerting the Head of Litigation and Complaints, to matters which

may lead to Clinical Negligence, Employer/Public Liability or Property Expenses claims.

• Co-operating fully in the investigation of any claim providing

comments or statements as requested in a timely fashion. This applies to current and ex-employees. All employees are covered by the NHS indemnity.

• Alerting the Investigation and Litigation Manager immediately

should a Claim Form (issued by a Court) or Claimant’s Solicitors letter indicating a possible claim in relation to their NHS work be addressed to them personally.

• Alerting the Investigation and Litigation Manager immediately

should they receive a request for medical records addressed to them personally in a matter which could potentially become a claim against the Trust.

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• Keeping any “privileged” documents filed separately from the

medical records. Privileged documents are those produced in contemplation of litigation. The Investigation and Litigation Manager will always file documents for staff on the legal file. These can be made available to staff on request.

• Adhering to the reporting requirements of the Medical Devices

Agency (MDA). Following an untoward incident resulting from the use of a medical device –the equipment must be kept secure and intact and must not be returned to the supplier unless advised to do so by the MDA.

• Ensuring safe-keeping of any physical evidence which may be

required in the investigation of a claim. • Co-operating with the Investigation and Litigation Manager in

identifying the root causes of an incident which has resulted in a claim.

• Identifying and taking the necessary actions to manage any

risks highlighted by a claim.

6. The Trust’s Solicitors 6.1 The Trust uses two firms of Solicitors for legal services.

They are: Hempsons Solicitors

Portland Tower Portland Street Manchester M1 3LF Tel: 0161 228 0011 Evershed Solicitors Tel: 0113 243 0391 6.2 The term Claimant/Defendant will be used in correspondence from Solicitors. The following are definitions of these terms: 6.2.1 The term ‘Claimant’ refers to the person/s who is/are pursuing a claim for damages, arising out of the alleged negligence, against the Trust. 6.2.2 The term ‘Defendant’ refers to the Trust who is defending the allegation of negligence.

6.3 When it is necessary for legal advice to be obtained a request form MUST be completed and authorisation obtained (Appendix A). All costs incurred will be debited to the corporate services litigation budget code. (see Appendix A)

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6.6 Instructions for legal advice regarding claims other than HR can only be given by the following:

• Chief Executive • Director of Finance • Director of Corporate Services • Assistant Director of Corporate Services and Risk Management • Investigation and Litigation Manager • National Health Service Litigation Authority.

7. Communication with Stakeholders 7.1 During the investigation process the organisation may consider involving external agencies such as:

• Enforcing agencies, e.g. Police, H&SE, H M Coroner. • External stakeholders • External advisors, e.g. clinical experts providing advice on

breach of duty, causation, condition and prognosis. • Third party investigation if there is insufficient expertise or test equipment with the organisation, political consideration or the need to eliminate bias.

8. Learning from Experience 8.1 The Trust is committed to learn and make changes to practice to improve services as a result of claims. 8.2 A systematic approach to the analysis of incidents, complaints and claims on an aggregated basis will be developed as part of the risk management integrated process, which will include:

• Organisational sharing of learning • Local implementation of action plans • Links between claims, complaints and incidents management • Identification of risks and inclusion on risk register • Reviewing and implementing best practice from other Trusts and organisations.

8.3 Claims will be viewed in conjunction with complaints and incidents and the

Investigation and Litigation Manager will report back any learning to the Risk Management Operational Group both as an Annual and Quarterly reports. Learning from claims will also be shared as widely as possible in the Trust as appropriate.

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9. Equality Impact Assessment 9.1 The Trust aims to design and implement services, policies and measures that meet the diverse needs of our service, population and workforce, ensuring that none are placed at a disadvantage to others. 10. Policy Review 10.1 This policy will be reviewed every 3 years or sooner should the need arise. 10.2 This policy is to be read in conjunction with the NHSLA reporting guidelines and procedures and the following PCT policies and procedures:

• Complaints Procedure • Incident Reporting Procedure • Records Management Policy • Risk Management Policy

11. Dissemination and implementation 11.1 Claims Handling Policy will be disseminated in line with the Policy for the development of Procedural Documents.

12. Key Stakeholders consulted / involved in the development of the policy & procedure.

• Helena Corder - Director of Corporate Services • Terry Service - Assistant Director of Corporate Services and Risk

Management • Jane Kennedy - Litigation and Investigation Manager • NHSLA • Policy Development Group

13. The Procedure 13.1 Clinical negligence claims, useful notes for guidance 13.1 Documentation 13.1.1 If any document that is relevant to the treatment is not within the medical records inform the Caldicott Guardian immediately i.e. it is the responsibility of the Caldicott Guardian to rectify this as a matter of urgency. 13.2 Tracing medical/nursing staff who have left the Trust 13.2.1 If medical staff are identified as having been involved and they have

terminated their employment with NHS Kirklees, contact Human Resources

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who will be able to supply their (GMC) General Medical Council (MDU) Medical Defence Union Registration Numbers or they may even have a forwarding address. Inform the Defendant's Solicitor of the GMC/MDU numbers who will trace the medical staff.

13.2.2 What if the Health Professional does not consent to the release of the medical records? 13.2.3 Ascertain the reason why consent is not given. Legal advice should be sought. 13.3 What the form of authority should contain 13.3.1 The form of authority should be signed by the person who has received the treatment. If it is a minor then it should be signed by the parent/guardian. It should not be a photocopy or fax and should be dated. 13.4 Supporting staff 13.4.1 The Investigation and Litigation Manager will advise staff of the processes involved and offer support throughout the process to the conclusion of the claim by way of regular updates. 13.4.2 If a claim should proceed to the requirement of attendance at court then support will be offered by the Trusts Solicitors and Head of Risk, Litigation and Complaints. 13.4.3 Staff required to provide statements will be supported in the process and provided with a pro- forma for producing witness statements. (See Appendix 2). 13.4.4The Trust also provides a counselling service that can be accessed through the Occupational Health Department for staff involved in particularly stressful claims. 14. Conditional fee agreements 14.1 A Conditional Fee Agreement is an agreement between a person providing advocacy or litigation services and a Claimant. This is commonly referred to as a “no win no fee” agreement. 14.2 Claimant’s entering into Conditional Fee Agreements on or after the 1 April 2002 will, in the event of recovering damages, also be able to recover from the Defendant their reasonable insurance premium for the Conditional Fee Agreement; and their Solicitors will be entitled to a success fee, also payable by the Defendant, of up to a maximum of 100% above their standard charge. 14.3 Pre-action, there is no obligation on Claimants to reveal the existence of a Conditional Fee Agreement, but the Defendant should none-the-less enquire

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at the earliest possible stage as to the funding arrangements in force. The Claimant must however disclose that a Conditional Fee Agreement exists upon service of proceedings. 14.4 The level of success fee and insurance premium uplift will not normally be disclosed until damages have been paid. Therefore, Defendants will not be able to challenge these details until the Claimant’s costs are submitted for payment.

14.5 Mediation/alternative dispute resolution (ADR) 14.5.1Mediation involves a trained mediator acting as go-between to facilitate settlement. ADR can take one of a number of different forms, e.g. a time- limited discussion. Consider always the potential cost of such a step against the benefits which might be achieved. As a general guide, claims of relatively limited financial value, but possessing major emotional elements, e.g. the death of a child, might be suitable candidates. All cases, however, may potentially benefit from mediation or ADR at any stage. 15. Claimant’s part 35 Offer 15.1 It is possible that these may be made at an early stage, even where the first notification is a letter of claim. In all cases they should be supported by a medical report and a schedule of losses. Punitive consequences may flow from offers made under CPR PART 36 which are either rejected or fall out of time, which ultimately prove to be successful. 15.2 Any such offer, even one unsupported by medical evidence and/or a schedule, requires immediate notification to the NHSLA by telephone followed up by fax. This must happen as soon as the documents are received as it is extremely important to avoid delay. 15.3 The Trust should not give any indication to the claimant’s solicitors that any such offer is valid, or that time runs from a particular date. 16. Risk Management 16. 1 Grading Of Claims The Assistant Director of Corporate Services and Risk Management will

arrange for all claims to be graded, taking into account the original incident report.

All claims will be graded according to:

• Actual severity – taking account of the seriousness of the harm caused as well as the financial implications of the claim.

• Future risk to patients and staff • Future risk to the organisation. • Likelihood of claimant success.

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The initial risk level “grading” will be revised only when the action plan has

been completed and the changes in practice can be shown to have reduced the level or risk.

This grading procedure will be consistent with the Trust’s risk rating matrix set

out below which is consistent with the NHS standard NZ/AS1999 :

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16.2 Risk Level and Level of Investigation and Review If the incident (leading to the claim) was previously reported as an adverse incident, investigation should already have been undertaken with the results

being presented to the Risk Management Operational Group for remedial action to be taken and monitored.

16.3 Root Cause Analysis The Head of Litigation and Risk Management will ensure that a root cause analysis approach to all investigations, which might lead to claims. The purpose of conducting a root cause analysis of potential claims is to identify the real causes of the incident and to establish legal causation. Root cause analysis can also reveal underlying system failures and other contributory factors that may have had an impact on the incident and ensure that lessons are learned. In line with national requirements, the Trust is applying a root cause analysis approach to investigations into adverse incidents, complaints and claims. Further information is contained in the Incident Reporting and Serious Untoward Incident Policies on Reporting Incidents. 16.4 Information on Risk Management issues arising and improvements undertaken will be reported and action plans monitor by the Risk Management Operational Group and ultimately to the Governance Committee. 17. Pre-Action Protocol 17.1 The Trust will at all times adhere to the pre-action protocols for the resolution

of clinical disputes and personal injury claims, in the interests of:

• Encouraging a climate of openness when something has “gone wrong ”with a patient’s treatment or the patient is dissatisfied with that treatment and/or the outcome.

• Encouraging the adoption of a constructive approach to

complaints and claims, and accepting that concerned patients are entitled to an explanation and an apology if warranted, and to appropriate redress in the event of negligence.

• “Building on and increasing the benefits of early but well informed

settlement which genuinely satisfies both parties to dispute”. 18. Administration of Clinical Negligence Claims 18.1 In light of the Pre-Action Protocol for the Resolution of Clinical Disputes and

the introduction of the Civil Procedure Rules on 26th April 1999, CNST

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Reporting Guidelines April 2005, the following guidelines have been be adopted.

18.2 On receipt of a claimant’s Solicitors letter requesting disclosure of health records, in which they also outline allegations of clinical negligence (known as Letter Before Action"):

• Check that an original signed and dated Form of Authority from the Claimant/s is enclosed. If not, this must be requested. Check the date is current.

• Acknowledge receipt of Solicitor's letter within 2 days.

• Liaise with the Complaints Manager and check whether there is a "complaints" file. Any complaint files to be stored in the claim file until conclusion of the claim.

• Check on the Datix database if an incident form has been received. A copy of the incident form to be stored in the claim file.

• Inform relevant Director responsible for the Service.

• Document all communication.

18.3 Acquisition of supporting documentation The following information should be compiled:- 18.3.1 Establish the name of the Health Professional responsible for the treatment received by the Claimant. This can be acquired from the relevant Medical Records. 18.3.2 Complete a Medical Record Request Form, i.e. list of all medical records relating to the patient involved. 18.3.3 Write to the Health Professional and request the following:-

• preliminary medical report detailing the care receive • identification of other medical staff involved

(enclose copy of Claimant's Solicitor's letter and medical records).

18.3.4 Upon receipt of the medical records from the health professional, photocopy

one complete set of records. 18.3.5 Calculate charge for copying records, up to a maximum of £50.00, in line with

the Data Protection Act 1998. Write to Claimant's Solicitors requesting cheque. Copy medical records must be released to the Claimants Solicitors

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within 40 days of receipt of the Letter Before Action. (No records should be released until payment is received from the Claimants Solicitors.)

18.3.6 Original medical records must not be released except in exceptional cases but only if a copy is filed with the service. This is in case the Claimant has continuing cares need or use the service again. Always check to see if the patient is still using the service or due to attend. 18.3.7 Where a record is identified for litigation purposes it will be stamped on the

front cover with an alert notice by the Investigation and Litigation Manager. In addition, the Records Management system will record that the record must not be destroyed.

18.3.8 The Investigation and Litigation Manager will commence the preliminary

Investigation. 19 Preliminary analysis 19.1 It is not necessary or desirable to investigate in detail every case in which

records are requested. However in every case a preliminary analysis should be completed by the Assistant Director of Corporate Services and Risk Management. This is a brief examination of the immediately available evidence which needs to be tested against the legal criteria of breach of duty and causation, to see if there is a realistic prospect of a claim being made.

19.2 Preliminary analysis should normally be completed within forty days of receipt of the request for disclosure. 19.3 When an incident report or a complaint exists, the results of the investigation and, in the case of the latter, a formal response, will be available. These will usually furnish sufficient information to form a judgement as to the likelihood of a claim being made. 19.4 When an incident report does not exist, the medical records will be scrutinised carefully. Summaries are particularly useful, and may often allude to complications that may represent untoward events, and the steps already taken to remedy them. The views of the clinician in overall charge of the patient and anyone else who, on the face of it, may have made an error will be requested. The information gathered will be measured against the Trust’s risk rating or severity measurement criteria used for incident reporting. See Trust Incident Reporting Policy available on the intranet. 19.5 Rating criteria are particularly useful where they have been designed to determine the depth, level and scope of investigation and reporting within the Trust. As a minimum, the NHSLA expects Trusts to have in place a policy on investigation of incidents which will be used to determine the extent of any investigation which may be necessary. See Trust Serious Untoward Incident Policy on the intranet which incorporates the method of Root Cause Analysis. 1986 Preliminary analysis will be structured and contain the following sub-headings;

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Synopsis and Chronology - A brief outline of main events

including details of main parties involved

Care Management Problems All events where care deviated beyond acceptable limits

Breach of Duty Record those case 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 Legal support staff on basis of 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 figure for both claimant and defence legal costs.

Claimants Funding How the claimant is funded Risk Management Implications What can be learned for the future out

of the events in question? Action Plan The next step recommended is an

assessment of litigation risk. Low, Medium or High (see CNST guidelines for definitions)

20 Letter of claim 20.1 Under the Pre-Action Protocol a Claimant is required to send a Letter of Claim

containing a clear summary of facts on which a claim is based, including the main allegations of negligence, the patient's injuries, present condition and prognosis and financial loss. This can be sent at any time after the records have been disclosed and will sometimes be received whilst the Trust's preliminary analysis is underway. The time between disclosure of records and Letter of Claim is variable. Letters of Claim should be reported to the NHSLA within 24 hours of receipt.

20.2 The Letter of Claim indicates that the formal legal process has commenced

and there will be three months to respond formally, provided that the letter is Protocol compliant. Do not give any indication that you regard it as such, thereby enabling NHSLA or panel solicitors to seek further time if need be. The Trust should acknowledge the letter and will identify that the NHSLA will

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be dealing with it. The NHSLA may in turn instruct a panel solicitor, if necessary, who will then contact the Claimant’s solicitor.

20.3 The NHSLA or panel solicitor will, wherever possible, seek an extension of

time when there has been no previous indication that a claim is being made. Insofar as the available evidence can be obtained, a formal response will be provided within the timescale.

21 Reporting procedures

Scheme for Trust (C.N.S.T), Existing liabilities scheme for Trusts (E.L.S) 21.1 Reporting to the NHSLA 21.2 When a significant litigation risk has been established and a realistic valuation of a possible claim has been made, the matter becomes reportable to the NHSLA. One of four possible situations may arise:-

• Incidents reported (e.g. a major clinical mishap), graded red and investigated under the governance arrangements. Those revealing a possible breach of duty leading to a potential large value claim (i.e. damages of over £250,000) must be reported as soon as possible, usually before a claim is made.

• Claims arising from a complaints 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.

21.3 The following basic documentation should be sent in with all such cases:-

• Covering letter supported by the preliminary analysis. • A completed CNST/ELS Claim Report Form • Copies of the correspondence from the claimant’s solicitor or

patient. • Copies of comments from clinical staff obtained as part of the

preliminary analysis. • Where relevant – the report of investigation of any adverse

incident, or the formal response by the Chief Executive to a letter of complaint.

21.4 The NHSLA will liaise with the Trust and agree how the further investigations will take place. The NHSLA may conclude that panel solicitors should be instructed and will do so directly but in collaboration with the Trust. 21.5 Claims can be categorised into three main areas:-

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21.5.1 Large Value Claims

21.5.2 Large value claims are those where the possible damages liability exceeds £250,000. By definition they will arise from serious clinical incidents which fall within the normal reporting guidelines in any Trust. The size of claim will usually result from the need for continuing care provisions to be made. There may also be dependent family members and loss of future income contributing to the size of the eventual settlement.

21.5.3 Thus most of these incidents will be graded at the most severe end of any rating spectrum. This means that they will be subject of detailed investigation. A summary of Serious Untoward Incident is produced and monitored by the Governance Committee on a bi-monthly basis. For the conduct of investigations at this level staff must follow the Serious Untoward Incident Policy for such claims.

21.5.4 Whilst the dominant purpose of investigations is governance, the possibility of

litigation needs to be constantly kept in mind. Formal statements will be collected that can be used by the Defence later on. However, such statements will be discloseable in any subsequent litigation and therefore it is essential that they are both accurate and complete. A template for preparing formal witness statements is an appendix to this document. In problematical cases the Trust may wish to take legal advice in the preparation of this evidence. This will be a matter for the Trust to consider as the cost of such advice will not be reimbursed in course of defending a claim. However, where legal advice is taken, the Trust should instruct one of the NHSLA Panel firms who will be aware of the standards required for defence.

21.5.5 If the potential use of solicitors is discussed at this stage with NHSLA in advance, the Litigation Authority might agree that such costs will form part of the claim provided that there is a real likelihood of a claim actually arising.

21.5.6 This further follow-up is essential for the purposes of governance, as any identified weaknesses in technique or performance will need to be addressed with clinical staff and appropriate action agreed. It is clearly in the interests of patients that such steps are taken rapidly where expert opinion identifies practice that may not be acceptable.

17 21.5.7 This grade of incident is already reportable to the Department of Health via STEIS and NPSA. This action is completed by corporate services.

21.6.1 Significant Value Claims

21.6.2 These will form the bulk of claims, with damages valued between £25,000 and £250,000. They will be managed, as before, by the teams at Napier House.

21.6.3 Once the preliminary analysis has been carried out and the case reported to the NHSLA, it will be either handled in house, or assigned to a Panel Firm of solicitors for further conduct. Where a case is referred under direct

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instruction, this will normally be by agreement with the Trust. Exceptions may arise where the case forms part of a series or group action, which are clearly best handled by dedicated teams, or if it is novel, contentious or repercussive in a manner which indicates the use of a specialist defence practice.

21.6.4 Further conduct of this group of cases will be by liaison between NHSLA and the Trust. Investigation and Litigation Manager will need to collect detailed statements, either in conjunction with panel solicitors or the NHSLA or on their behalf. The Investigation and Litigation Manager will keep staff informed as to the progress of a claim, to seek views on the selection of experts and to share their reports with health professionals/clinicians.

21.6.5 This further follow up is essential for the purposes of governance as any

identified weaknesses in technique or performance will be addressed with health staff and appropriate action agreed. This will be undertaken by formal communication from the Investigation and Litigation Manager to the Director and will be monitored by the Risk Management Operational Committee and Governance Committee.

21.6.6 When a claim reaches key stages such as admission of liability or breach of duty, when quantum has been determined, and an offer of settlement is to be made, the NHSLA claims manager will inform the Assistant Director of Corporate Services and Risk Management so that the Health Professional may be informed and in those cases where opinion may diverge, enabled to comment within defined time limits on the decisions to be made. This process is essential if the Trust is to meet its obligations both to staff and to other stakeholders within the governance agenda.

21.7 Smaller Value Claims

21.7.1 These claims are valued at less than £25,000 for damages and will be managed by a unit based at Napier House London.

21.7.2 On receipt of the preliminary analysis and supporting documentation, the small

claims unit will seek to resolve the claim quickly wherever possible. After reviewing the case NHSLA will respond to the Trust indicting the action which will be taken to dispose of the claim. Further investigation or clarification may be needed and any expert opinion secured will be made available to the Trust so that necessary risk management action or corrective training may be initiated. NHSLA will value suggestions from the Litigation and Investigation manager or the Assistant Director of Corporate Services and Risk Management as to speedy methods of local resolution of such cases.

21.7.3 Any “ex-gratia” settlements by a Trust, whether as a consequence of a case passing through the complaints procedure or otherwise are, by definition, not payments based upon legal liability and are therefore not reimbursable under CNST by the NHSLA.

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22. Strategic Health Authority claims 22.1 Health Authority legal claims are determined by the incident/treatment date of

the alleged negligence which occurred before the 1 April 1994. 22.2 It is anticipated, for the foreseeable future that Health Authority legal claims will continue to be received. The following procedure should be followed.

• Upon the receipt of such a claim the Solicitors letter should be acknowledged.

• Forward a copy of the Claimant's Solicitor letter and acknowledge letter to the Yorkshire and Humber NHS, Blenheim House, Leeds, as the claim Y & H NHS responsibility.

22.3 As with Trust cases, the same information will be required. However, the Y & H NHS will liaise direct with the Solicitor. All requests for further information/documentation will be channelled through the Head of Litigation and Complaints. 22.4 The Trust is not responsible for any payments incurred in defending a Y & H NHS legal case. 23. Liabilities to third parties scheme: Employer and Public Liability Claims

(RPST)

Useful notes for guidance 23.1 NHSLA Third Parties Liabilities Scheme (LTPS) 23.2 All Employer or Public Liability claim which involves an incident on or after 1 April 1999 are covered by the Scheme. 23.3 The Scheme imposes fixed excesses upon the Trust, these are:- Employer Liability Claims £10k Public Liability Claims £ 3k 24 Incidents 24.1 Staff incident forms are screened appropriately qualified staff within Corporate

Services. 24.2 As a precautionary measure, any incident which could potentially lead to a subsequent claim should be acted upon immediately by collating key documentary evidence. 24.3 The Risk Management Operational Group meets quarterly to consider all significant incidents. 24.4 Documentation

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24.4.1 Documentary evidence is vitally important in preparing defence. For example, training records need to show the name of the course trainer, duration of course, content, with copies of hand-outs, and dated, signed attendance sheets. Where equipment or the estate is involved copies of job sheets, maintenance records, systems of inspection are required. Requests for documentary evidence should form part of the preliminary investigation and be obtained by the appropriate Locality Manager.

24.5 Form of authority 24.5.1The Form of Authority should be an original, signed by the Claimant or their nominated next of kin if the Claimant is unable to sign. If a minor, then the Form should be signed by the parent/guardian. The Form of Authority should not be a photocopy or fax and should be dated. 24.6 Statements of truth 24.6.1 Statements of Truth and Lists of Documents for Disclosure are legal

documents which require the signature of delegated officers of the Trust. The signatories for the Trust in respect of Statements of Truth on Particulars of Claim or Defence which are served in connection with the Trust’s liabilities to third party claims are the Chief Executive, Director of Finance, Director of Corporate Services, Assistant Director of Corporate Services and Risk Management and the Litigation and Investigation Manager.

25. NHSLA reporting guidelines 25.1 In order to promote better understanding amongst the Scheme Membership regarding the reporting to and ongoing relationship with the NHSLA in relation to the Liabilities to Third Parties Scheme, the NHSLA have produced a set of reporting guidelines, copies are held by the Risk Management Unit. The NHSLA has a website at www.nhsla.com.

26 Administration of liabilities to third parties claims (LTPS)

(Employer/Public Liability)

26.1.1 Upon receipt of a Solicitors letter outlining allegations of non-clinical negligence, known as “Letter of Claim”, the Litigation and Investigation Manager will implement the following actions:-

26.1.2 The Trust has 21 days in which to issue an acknowledgement to a letter of claim. In line with NHSLA guidelines the Trust will acknowledge receipt of the letter of claim during the third week of the 21- day period. Acknowledgement should indicate that further correspondence should be sent direct to the NHSLA. 26.1.3 Within 21 days of receipt of the letter of claim, forward to the NHSLA the following documentation:-

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• Covering letter clearly indicating a new claim notification is

attached • Completed LTPS claim report form • Copy of the Letter of Claim from the claimant’s solicitor • Any prior correspondence, e.g. letter of complaint, Trust

response • All reports of investigations into the incident • Copies of comments from supervisors and/or managers

obtained as part of the initial incident investigation • Unless the Trust is already satisfied that liability attaches for the

incident, as much documentation as possible of that set out in the Personal Injury Protocol “Standard Disclosure Lists”.

26.1.4 Check via Datix Incident Reporting for reported incident details. 26.1.5 Check with the Complaints Manager whether there is a “complaints” file relating to the alleged incident. Any complaint files to be stored with claim file until conclusion of the claim. 26.1.6 Notify relevant Director responsible for the Service in which the Claimant works and/or incident occurred. 26.1.7 Notify the Health, Safety and Security Manager of new claims. 26.1.8 Summarise risk issues following investigation of claim, notify Director and request appropriate manager to conduct a risk assessment. 26.1.9 Complete checklist. 26.2 Acquisition of supporting documentation 26.2.1 A wide range of documents and information will be required to assist in the investigation of a claim, the following is a suggested list but is not exhaustive:- 26.2.2 Initiate preliminary investigation via the appropriate Director. The information

required will vary according to the type of claim: 26.2.3 Where access to health records, occupational health records, etc are required

as part of the investigation check that an original signed and dated Form of Authority from the Claimant has been received.

26.2.4 When occupational health records are required write to the Occupational

Health Department enclosing a copy of the Form of Authority and request copies of all occupational health records relating to the Claimant.

26.2.5 It is often useful to view the Claimant’s personnel file (employer liability claims)

and this should be requested from the appropriate Director at the preliminary investigation stage.

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26.2.6Should the Claimant have received treatment at the Trust relating to the alleged injuries; establish the name of the Health Professional responsible for the treatment received by the Claimant. The details may be acquired by reviewing the relevant Medical Records.

26.2.7 Write to Occupational Health and request consent to the release of the

medical records, enclosing copy of the Claimants Form of Authority and reason for the request.

26.2.8 Write to other medical staff involved in the treatment received by the Claimant

and request consent to the release of medical records appertaining to them only.

26.2.9 When treatment has been sort at another Trust and records are required, request copy records and consent to their release from the Director of the appropriate Trust and service. A photocopy of the Claimant’s Form of Authority to be enclosed with request. 26.2.10Where disclosure of patient health records are required in employer liability, litigation, e.g. manual handling claim, consent to disclosure of relevant records must be obtained from the patient. If consent is not given, the Trust’s solicitors may apply to the Court for a Court Order. 26.2.11Original medical records must not be released except in exceptional cases

and only if a copy is filed in the service or when archived by the Head of Litigation and Complaints. This is in case the Claimant is still receiving care or recommences care.

26.2.12Obtain copy medical certificates and earnings details from Payroll: employer liability claims. 26.2.13Complete an LTPS Claim Report Form 26.2.14Claims reported to the NHSLA 26.2.15Once the final case costs are known the NHSLA will raise an invoice, payable by the Trust, in relation to the applicable Scheme excess.

27. Reportable claims 27.1 Claims reported under the Claims Handling Service 27.2 Property expenses scheme (PES) 27.2.1From 1 April 1999 cover for buildings and content is provided by the Trust’s membership of the NHSLA’s Property Expenses Scheme. A copy of the Scheme Rules is held in Corporate Services.

The Scheme imposes fixed excesses upon the Trust, these are:-

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Buildings £20k Contents £10k Other categories of claim within the Property Expenses Scheme carry varying levels of excess, please refer to the Scheme Rules. 27.2.2The Scheme will not be liable for any amount above the Trust’s delegated limit in respect of each and every claim. 27.2.3 Sub excess losses should be managed in accordance with the Trust’s Standing Financial Instructions – Losses and Special Payments. 27.2.4 Claim forms are held and completed by the Litigation and Investigation

Manager and must be completed immediately a claim falls within the above categories. All supporting documentation should accompany the submitted claim form.

27.3 Acquisition of supporting documentation 27.3.1 Initiate preliminary investigation and collation of supporting documents via the appropriate Director. 27.3.2 Obtain copy Incident Form which should specify date and location of incident and give circumstances of the incident. 27.3.3 Details of loss to include:

• Description of property damaged/stolen • Model and serial number • Owner of property ie employee, patient, visitor • Estimated repair/replacement cost • Copy invoice for lost/damaged equipment • Copy invoice for replacement equipment

27.3.4 Obtain witness details, if applicable. 27.3.5 Photographs of the site of the incident, if appropriate. 27.3.6 Obtain details of remedial action taken. 27.4 Settlement and payments 27.4.1 Costs over the Trust’s excess limit and up to the Trust’s delegated limit are recoverable under the Scheme Rules. 27.4.2 PES Incident Report forms are held and completed by the Litigation and

Investigation Manager. All supporting documentation should accompany the submitted form.

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27.4.3 Sub-excess losses will be managed in accordance with the Trust’s Standing Financial Instructions – Losses and Special Payments. 27.5 Corrective action 27.5.1On receipt of a claim the NHSLA will advise the Trust of the possible outcome

and ask for evidence of corrective action, if this has not already occurred as a result of an incident report or complaint. 27.5.2The NHSLA will report on the progress of claims where corrective action has

been shown to be necessary. These reports will go to the Trust’s Governance Committee.

27.5.3Claim files will not be closed until corrective action has been taken, and the Governance Committee has approved that the file can be closed. 27.5.4 Once the final case costs are known the NHSLA will raise an invoice, payable by the Trust, in relation to the applicable Scheme excess and handling fee if the case closes within the excess. 28. Monitoring arrangements

28.1 The Governance Committee meets bi-monthly and quarterly to discuss as part

of their agenda incidents, complaints and claims. They develop and monitor local action plans as a result of significant risk issues.

28.2 Service reports are distributed quarterly to managers and senior staff for cascading down to their teams via team brief. 28.3 Significant risks resulting from incidents complaints and claims are recorded on the Trusts Risk Register and reports are presented to the Risk Management Operational Group. 28.4 Aggregated reports on incidents, complaints and claims are presented to the

Risk Management Operational Group (quarterly) and Governance Committee (bi-monthly)

28.5 Trend Analysis Reports are presented to the Trust Board as necessary. 29. Staff training 29.1 Staff are provided with training on Complaints and Claims management

dependent on their role and responsibilities. The training is specified within the Trust training prospectus.

29.2 Training on Risk Management, Incidents, complaints and claims is mandated

for certain staff groups as specified within the Trust training prospectus.

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30. Press information 30.1 It is vital to remember that no dialogue must be entered into between the Claimant or a representative of the Claimant and/or a member of staff from Trust. 30.2 If the Claimant or a representative for the Claimant contacts the Trust the following action should be taken:-

• Advise that "we" are unable to comment on an individual case which is in the process of litigation.

• The official channel of communication is via the Claimant's Solicitor and the Trust's Solicitor.

30.3 If and when a case goes to Court naturally this will attract media attention. 30.4 Upon notification of a Court date, the Litigation and Investigation Manager will

contact the Assistant Director of Communications to provide a case up-date.

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REQUEST FOR AUTHORISATION TO OBTAIN LEGAL ADVICE Advice required from: ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… (Name of Solicitor) Reason for Request (please provide brief details) Name: ………………………………………… Designation: ………………………….……. Directorate ……………………………………. Department: ………………………..………. Date: …………………………………………. Budget Code: ……………………………….

Appendix 1

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Estimate of Defendant’s Solicitors Costs: ………………………. Actual …………………… Estimate of Claimant’s Solicitors Costs: ………………………… Actual …………………… Estimate Claim value: ……………………………………………… Actual …………………… Time Required: …………………………………………………………………………………… Authorised By: Name: ………………………………………….…… Designation: …………………………… Signature: ………………………………………….. Date: …………………..………………..

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(Pro Forma for statement for Complaints, Claims and Incidents) PATIENTS NAME: ……………………………………………………… D.O.B: ………

PATIENTS ADDRESS: ……………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

TELEPHONE NO: ………………………………… NHS NO: …………………………

WITNESS STATEMENT

Witness statement [TITLE/Name]

1 [Set out

• Your full Name

• Professional address

• Your current post

• Details of you qualifications

• Your post and grade at the time of incident/complaint]

2 [Please set out details of where you worked, either unit or team, athe nature of the locality and the client group that you worked witpremises please set out its size, and the type of clients treapremises– including whether under Section or not and whspecialist services are provided]

3 [If appropriate please set out details of your role within the loca

you have primary clinical responsibility, are you manager, do youin multi-disciplinary team planning and so on]

4 [Please set out details of your earliest contact with the patient]

5 [Then please]

Appendix 2

………………. ……………...

…………...…

……………...

……………….

Date [ ]

nd explain h. If it is a ted in the ether any

lity e.g. do participate

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• Set out in chronological order and in first person details of your

subsequent contact with the patient including relevant details of your interaction with him and or relevant others

• When referring to others, use name and job title

• So far as possible be clear where you have witnessed events, or if you

are given information set out the source of it

• Differentiate clearly between of fact and opinion

• Statement should be drafted double-spaced so that it can be annotated if appropriate.

• If you refer to specific information in the records and/or a report of some

kind then please identify this by date and, for example, if it is short entry in the middle of a large set of notes it would be wise to formally exhibit this as, for example (“ Your Initials1”), if there are further exhibits then should be (“Your Initials2”) and so on]

6 I believe that the contents of this witness statement are true. 5 [Then please]

• Set out in chronological order and in first person details of your subsequent contact with the patient including relevant details of your interaction with him and or relevant others

• When referring to others, use name and job title

• So far as possible be clear where you have witnessed events, or if you

are given information set out the source of it

• Differentiate clearly between of fact and opinion

• Statement should be drafted double-spaced so that it can be annotated if appropriate.

• If you refer to specific information in the records and/or a report of some

kind then please identify this by date and, for example, if it is short entry in the middle of a large set of notes it would be wise to formally exhibit this as, for example (“Your Initials”), if there are further exhibits then should be (“Your Initials2”) and son on]

7 I believe that the contents of this witness statement are true. 8

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[SIGNED] [DATED]

TEMPLATE FOR LETTER OF CLAIM Letter of Claim Essential Content 1. Client’s name, address, date of birth etc. 2. Dates of allegedly negligent treatment/event 3. Events giving rise to the claim

• An outline of what happened, including details of other rel treatment to the client by other healthcare providers.

4. Allegation of negligence and causal link with injuries.

• An outline of the allegations or a more detailed list in a co• An outline of the causal link between allegation and the in complained of.

5. The Client’s injuries, condition and future prognosis. 6. Request for clinical records (if not previously provided)

• Use the Law Society form if appropriate or adapt. • Specify the records required • If other records are held by other providers and may be re so. • State what investigations have been carried out to date e. from client and witnesses, any complaint and the outcome clinical records have been seen or experts advice obtaine

7. The likely value of the claim.

• An outline of the main heads of damage or in straightforw details of loss.

Optional information

• What investigation have been carried out; • An offer to settle without supporting evidence; • Suggestions for obtaining expert evidence; • Suggestions for meeting, negotiations, discussion or med

Possible enclosures

• Chronology; • Clinical records request form and client’s authorisation; • Expert report(s); • Schedule of loss and supporting evidence.

Appendix 3

evant

mplex case. juries

levant, say

g. information , if any d.

ard cases the

itation.

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TEMPLATE FOR LETTER OF RESPONSE Letter of response – reasoned answer Essential contents

Appendix 4

1. Client’s name, address, date of birth etc. 2. Dates of allegedly negligent treatment/event 3. Events giving rise to the claim

• An outline of what happened, including details of other relevant treatment to the client by other healthcare providers.

4. Admitted liability

• Where a claim is admitted the reasoned answer should, with approval of the NHSLA, contain an admission of liability in clear terms*.

5. Admitted in part

• Where liability is admitted in part the letter should, with approval of the NHSLA¸ make clear which issue of breach and/or causation are admitted and why*.

6. Denied • Where liability is denied the letters should, with approval of the

NHSLA, include specific comments on the allegation of negligence. If a synopsis or chronology of event has been provided then the letter should include the Trust’s version of these events.

7. Additional documents

• Where any further or additional documents are quoted or relied upon in support of the Trust’s defence, e.g. an internal policy document, the copies must be provided to the claimant/solicitor.

*NOTE – ANY ADMISSIONS ARE LEGALLY BINDING Possible enclosures

• Chronology (Trust’s version of events) • Expert report(s) • Management report • Relevant policies

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KIRKLEES PCT EQUALITY IMPACT ASSESSMENT To be completed and attached to any procedural document when submitted to the appropriate committee for consideration and approval.

Appendix 5

Yes / no comments

1. Does the policy / guidance affect one group less or more favourably that another on the basis of:

NO

• Race NO

• Ethnic origins (including gypsies and travellers) NO

• Nationality NO

• Gender NO

• Culture NO

• Religion or belief NO

• Sexual orientation including lesbian, gay and bisexual people NO

• Age NO

2. Is there any evidence that some groups are affected differently? NO

3. If you have identified potential discrimination, are any exceptions valid, legal and / or justifiable?

NO

4. Is the impact of the policy / guidance likely to be negative? NO

5. If so can the impact be avoided? NO

6. What alternatives are there to achieving the policy / guidance without the impact? NA

7. Can we reduce the impact by taking different action? NA

If you have identified a potential discriminatory impact of this procedural document, please refer it to Head of litigation and complaints, together with any suggestions as to the action required to avoid / reduce this impact. For advice in respect of answering the above questions, please contact Head of litigation and complaints.

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