Claims handling policy (management of clinical negligence claims, employer or public liability claims, property expense scheme claims)

1 Introduction

1.1 Rationale

In complex, modern healthcare, things can and do go wrong and unintentional harm can result in consequences that could be very serious for the patient, their family and carers. The individual who has suffered harm as a result of the healthcare they have received must get an apology, a clear explanation of what went wrong, treatment and care, and where appropriate, financial compensation.

The trust must ensure that such experiences of individuals are learned from, so that future patients throughout the trust benefit from reduced risks and safer care. The primary aim must be to reduce the number of errors that occur, preventing harm, reducing risks and enhancing safety. This must include a coordinated response to harm and injury: investigation, support, remedial treatment and care where needed; fair recompense and a system of redress that is affordable and reasonably predictable in the way it operates.

The system for providing redress acts as an incentive for healthcare organisations and their staff to improve quality of care and patient safety Department of Health (2003) making amends.

1.1.1 Saying sorry

Saying sorry when things go wrong is vital for the patient, their family and carers, as well as to support learning and improve safety. Patients, their families and carers should receive a meaningful apology, one that is a sincere expression of sorrow or regret for the harm that has occurred. Refer to ‘being open policy (incorporating the duty of candour)’ for more details.

1.1.2 Duty of candour

The duty of candour is a legal duty on hospital, community and mental health trusts to inform and apologise to patients if there have been mistakes in their care that have led to significant harm. Duty of candour aims to help patients receive accurate, truthful information from health providers.

1.2 Background

All personal injury claims received by Rotherham, Doncaster and South Humber NHS Foundation Trust, (the trust) relating to the services it provides and the individuals it employs will be dealt with in accordance with EL (96) 11 “Clinical Negligence and Personal Injury Litigation”; HSC 1999/174 “IAF 37 Provisions, Contingent Liabilities and Contingent Assets”; the clinical negligence scheme for trusts, the Liability To third party scheme and property expense scheme (PES) reporting guidelines and the pre-action protocol for personal injury claims.

The board of directors is committed to competent and consistent management of personal injury claims, this can assist in minimising the financial impact on the trust, reducing as many disputes as possible without litigation. It also encourages a culture of openness between the parties and assists in improving the quality of care by using the event as an opportunity for the trust to learn from claims as well as complaints and incidents and that staff are supported during the investigation of a claim or other legal proceedings. The decision to settle a case or contest it will be based on an assessment of the litigation risk and the merits of the individual case.

The trust has a robust system in place for the reporting, management and investigation of incidents, including near misses, ill health and hazards. This system will help to facilitate organisational learning, and for internal and external information to be used to improve the services and care available to service users.

1.3 Schemes relevant to the organisation

A claim can be defined as an allegation of negligence and or a demand for compensation made following an adverse incident resulting in personal injury or any accident that carries a litigation risk for the trust.

1.3.1 Clinical negligence scheme for trusts (CNST)

The clinical negligence scheme for trusts handles all clinical negligence claims against member NHS bodies. Clinical negligence claims may arise out of any incident resulting in an allegation that a service or individual clinician failed to provide adequate care, resulting in harm to a patient.

1.3.2 Liabilities to third party scheme (LTPS)

Employer liability claims are claims for damages made by an employee who has suffered bodily injury or injuries sustained whilst acting in the course of his or her employment and arising from the trust’s failure in its statutory duty to provide a safe place of work and operate a safe system of work.

Public Liability claims are claims for damages made by a third party (for example, patient, visitor) to whom the trust owes a duty of care and who has suffered loss, damage or bodily injury or injuries (but not due to clinical treatment) as a result of the trust’s breach of duty. These claims also extend to damages arising from defective goods and equipment produced and supplied by the trust.

1.3.3 The property expenses scheme (PES)

PES covers claims for compensation made by the trust for accident loss, damage or destruction of premises owned or occupied by the trust including items of equipment owned by the trust, together with any resulting consequential losses. These claims also include other property related risks.

1.4 Legislation

The national health service resolution (NHSR) governs the following financial pooling schemes:

existing liabilities scheme (ELS)
clinical negligence scheme for trusts (CNST)
risk pooling scheme for trusts (RPST), for example, and liabilities to third parties scheme (LPTS) the property expenses scheme (PES)

Membership of the CNST, LTPS and PES is voluntary and is open to all NHS trusts. RDaSH is a member of these schemes.

The principal task of NHSR 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””.

1.5 Support mechanisms for patients or carers and staff

It is important to consider not only how the claimant feels in such situations, but also those in the service being claimed against. It can be an extremely stressful experience. Staff will be treated with sensitivity, informed of progress and have sight of any response letters which include their comments. See healthy workplaces policy and being open policy (incorporating duty of candour).

The trust promotes an open and non-punitive approach, free from an assumption of blame, towards incident reporting, risk management and claims.

The policy will enable the board to fulfil its commitments as described in section 1.1 and facilitate compliance with the requirements for membership of the NHSR Scheme.

2 Purpose

The purpose of this policy is to set out the trust’s arrangement for claims handling.

3 Scope

This policy covers all personal injury claims that are managed as clinical negligence claims, employer or public liability claims and property expense claims. These are claims received by the trust that relate to the services it provides and the individuals it employs.

This policy applies to all members of staff that are directly employed by the trust, those staff covered by a letter of authority or honorary contract or work experience and to those undertaking duties on behalf of the trust or working on trust premises.

4 Responsibilities, accountabilities and duties

4.1 Board of directors (BoD)

The BoD are responsible for having policies and procedures in place to support best practice, effective management, service delivery, management of associated risks and meet national and local legislation and or requirements. Responsibility is delegated to the executive directors of the trust.

4.2 Chief executive

The chief executive is the Board member with overall responsibility for clinical negligence, employer, public liability, or property claims handling and related issues within the organisation.

4.3 Designated directors

For clinical negligence claims and non-clinical claims the designated director is the director of nursing and allied health professionals who will also provide support and leadership on clinical issues.

In addition will facilitate the process for information obtained during claims investigations to be shared with workers directly involved in the case.

4.4 The claims manager (head of patient safety)

The post of claims manager is held by the head of patient safety who will with support of the claims administrator:

report clinical negligence, non-clinical personal injury and property expenses claims to the NHSR
manage claims in liaison with the NHSR, retained trust solicitors, panel solicitors and RDaSH employees
ensure compliance with pre-action protocol for the resolution of clinical and non-clinical claims
provide a monthly dashboard to the quality committee
any themes and or issues identified will be discussed at the quality committee
themes will be categorised into corporate actions for the clinical leadership executive and operational actions for the operations management group (OMG)

5 Procedure or implementation

5.1 The management of clinical negligence claims

5.1.1 Timescales for reporting a claim to the NHSR

The following table sets out the triggers for where and when a claim should be reported to the NHSRNHSR.

Situation, serious incident where investigations suggest there have been failings in the care provided and there is the possibility of a large-value claim (for example, damages £500,000).

Timescale, as soon as possible but no later than 3 months from when you became aware of the matter.

Situation, disclosure request (or some other indication that a claim is being considered, for example, limitation extension request) received and internal investigation (for example, complaint review or incident investigation) reveals possibility of a claim with a significant litigation risk regardless of value. Is closure request (or some other indication that a claim is being considered, for example, limitation extension request) received and Internal investigation (for example, complaint review or incident investigation) reveals possibility of a claim with a significant litigation risk regardless of value.

Timescale, as soon as possible but no later than 1 month from receipt of the disclosure request.

Situation, letter of claim served and or part 36 offer received and or proceedings received.

Timescale, within 24 hours of receipt with completed documentation to follow within 2 weeks.

Situation, group action, for example, any adverse issue which has the potential to involve a number of patients (for example, failure of a screening service).

Timescale, as soon as possible but no later than 1 month from when you became aware of the matter.

Situation, serial offender claims, for example, claims arising from the alleged negligence and or serious professional misconduct of a staff member affecting a number of patients.

Timescale, as soon as possible.

5.1.2 Letters of claim

NHSR have 14 days to acknowledge receipt of the letter of claim and 4 months to investigate and serve a letter of response. Once a decision has been made about whether to admit the claim in part or in full, or to deny it, a detailed Letter of Response will be prepared on our behalf.

5.1.3 Requests for disclosure of medical records

Requests for the disclosure of medical records will be accompanied by an appropriately signed authorisation for their release.
The claims manager will send the request to the Information
Governance team who will arrange for the release of the records within 40 days.

5.1.4 Reporting the claim to the NHSRNHSLR

Claims will be reported using the NHSRNHSR claims reporting system.
A clinical claim report form will be completed for every claim (appendix B).

5.1.5 Supporting documents and information

The following is a list of documents and information that will be collated, as appropriate, by the claims manager and sent on to the NHSR:

medical records
pre-claim correspondence
incident investigation-final report
incident investigation-statements
complaint investigation-final response
witness statements
relevant policies or protocols or guidelines

5.1.6 When the case is closed

The claims manager will provide the key issues of the case and lessons that can be learnt and shared trust-wide as appropriate. This will be managed through the safety and quality meeting and will normally be at the next meeting after the closure of the case.

5.2 The management of non–clinical claims: employer and public Liability claims

5.2.1 New claim notification

Non–clinical claims are registered by the claimant’s solicitor on the NHSRNHSR claims portal.
The NHSR sends an acknowledgement of the claim to the claimant’s solicitor.
The NHSR sends a copy of the claim and a claim reference number to the claims manager.

5.2.2 Supporting documents and information

The following is a list of documents and information that will be collated, as appropriate, by the claims manager and sent to the NHSR:

LTPS claim report form (appendix C)
pre-claim correspondence, for example, request for medical records
IR1
witness statements
relevant photographs
RIDDOR
HSE documents
risk assessments
health and safety minutes
details of similar incidents
repair or inspection or maintenance records
complaints correspondence
policy and procedure documents
any other relevant document

Also for employees:

training records
job description
personal file
earnings information

5.2.3 Issue of proceedings

In those instances where proceedings are served NHSR will be notified immediately. The designated director will on behalf of the trust, sign the disclosure statement and the statement of truth, which accompany the defence.

Financial settlement of damages, up to £10,000 will be approved by the claims manager; £10,001 to £50,000 will be approved by the chief executive and the director of finance. Claims of £50,001 to £1,000,000 will be approved by the chief executive and the chairman.

5.2.4 Conclusion of claims

On conclusion of any claim the responsible director or manager will be notified of the outcome. Learning from the claim in working practices and polices and procedures brought to light by the claim will be discussed with the manager by the claims manager and recommendations made for improvement. The process for monitoring through any action plans to completion is via the quality committee.

5.3 Property expenses scheme (PES) claims

The PES covers claims arising from property damage and covers accidental loss of, destruction of or damage to any property owned by or the responsibility of the trust as defined within the property expenses schedule.

Where such an incident occurs all appropriate actions should be taken to mitigate any further losses and ensure that a safe environment is created.

On receipt of a reported incident, the claims manager will assess the probable value of the claim or incident. In those instances where the total cost of the case will approach or exceed the scheme ‘excess’ the NHSR will be notified, and the necessary documentation collated and provided to them.

The ‘excess’ under the property expense scheme is £20,000. Only property damage or loss in excess of £20,000 will be reported under the scheme. The upper limit on property cover is £1m.

The claims manager, when notified of a damage or loss will liaise with the appropriate manager in order to assess the value of the damage or loss.

Damage or loss assessed to exceed the excess will be reported to the NHSR.

The claims manager will obtain details of the property damage or loss and will produce a schedule listing:

description of item(s)
order number(s)
purchase ledger invoice number(s)
estimated replacement Cost

5.3.1 Reporting the claim to the NHSR

The claims administrator will send the relevant documents and information to NHSR.

A loss adjuster appointed by the NHSR will contact the claims manager. The claims Manager will liaise with the loss adjuster to provide all the necessary information and to agree a settlement.

The claims manager will retain all relevant estimates on the claims file.

All incidents which are likely to result in media attention, health and safety executive prosecution, novel, contentious or repercussive must be reported to the NHSR immediately by the claims manager and the board of directors advised.

6 Training implications

There are no specific training needs in relation to this policy, but the following staff will need to be familiar with its contents:

all staff who during the course of their work will receive queries or communication concerning claims
any other individual or group with a responsibility for implementing the contents of this policy

As a trust policy, all relevant staff need to be aware of the key points that the policy covers. Staff can be made aware through a variety of means such as,

local induction
team meetings
one to one meetings or supervision
group supervision
practice development days
CPD sessions
discussed during other training such as root cause analysis training

6.1 The head of patient safety

Will be trained as part of their role in the management of claims and will be instructed in the procedures of claims management and handling in their induction and as and when legal or regulatory changes occur.

7 Monitoring arrangements

7.1 Duties status of claims

How: Reports.
Who by: Head of safety.
Reported to: Quality people and organisational development meeting.
Frequency: Quarterly.

7.2 Exceptional claims

How: Report to directors.
Who by: Designated director(s).
Reported to: Board of directors.
Frequency: As and when arises.

7.3 Cases proceeding to trial

How: Report to directors.
Who by: Designated director(s).
Reported to: Board of directors.
Frequency: As and when arises.

8 Equality impact assessment screening

To access the equality impact assessment for this policy, please email rdash.equalityanddiversity@nhs.net to request the document.

8.1 Privacy, dignity and respect

The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, “not just clinically but in terms of dignity and respect”.

As a consequence the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity and respect, (when appropriate this should also include how same sex accommodation is provided).

8.1.1 How this will be met

No issues have been identified in relation to this policy.

8.2 Mental Capacity Act (2005)

Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individuals’ capacity to participate in the decision-making process. Consequently, no intervention should be carried out without either the individual’s informed consent, or the powers included in a legal framework, or by order of the court.

Therefore, the trust is required to make sure that all staff working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005) to ensure that the rights of individual are protected and they are supported to make their own decisions where possible and that any decisions made on their behalf when they lack capacity are made in their best interests and least restrictive of their rights and freedoms.

8.2.1 How this will be met

All individuals involved in the implementation of this policy should do so in accordance with the guiding principles of the Mental Capacity Act (2005) (section 1).

9 Links to any associated documents

10 References

NHS litigation authority (opens in new window).

11 Appendices

Document control

Version: 6.1.
Unique reference number: 196.
Approved by: Executive management team.
Date approved: 29 January 2024.
Name of originator or author: Head of patient safety.
Name of responsible committee or individual: Corporate policy approval group.
Date issued: 1 February 2024.
Review date: June 2023.
Target audience: All staff who undertake duties in relation to claims handling and or learning and improvement activity as a result of claims.

Page last reviewed: November 15, 2024
Next review due: November 15, 2025

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